Pahwa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Mr Pahwa, the applicant, sought judicial review of a decision by the Administrative Appeals Tribunal (Tribunal) which affirmed a delegate of the Minister's refusal to grant him a temporary partner visa. The applicant, an Indian citizen who had been in Australia on various student visas since 2010, applied for a partner visa on 30 May 2016, based on his relationship with his de facto partner. The delegate refused the visa because the applicant had not met Schedule 3 criterion 3001, which required him to have applied for the visa within 28 days of his last substantive visa ceasing to be in effect. The applicant sought to rely on compelling reasons to waive this criterion, primarily citing medical reasons of his sponsor and the registration of their relationship.

The central legal issue before the court was whether the Tribunal had properly considered the evidence presented by the applicant and his sponsor regarding the sponsor's alleged medical conditions and the resulting hardship if the applicant were required to depart Australia. Specifically, the court needed to determine if the Tribunal's finding that there were no compelling reasons to waive Schedule 3 criteria was affected by jurisdictional error, particularly in light of the evidence concerning the sponsor's mental and emotional health, her treatment history, and her stated coping mechanisms.

Judge Driver found no jurisdictional error in the Tribunal's decision. The court noted that the sponsor's evidence regarding her mental health was inconsistent and lacked sufficient medical diagnosis or ongoing treatment. While the sponsor mentioned experiencing depression, anxiety, and suicidal tendencies, she also stated she had not been medically diagnosed, was not medicated, and had only attended limited couples counselling which she found unhelpful. The Tribunal was entitled to find that the evidence did not establish compelling reasons to waive Schedule 3, as the claimed hardship was not sufficiently substantiated by medical evidence or a clear indication of ongoing treatment that would be significantly disrupted by the applicant's departure. The court concluded that the Tribunal had adequately considered the evidence before it and applied the correct legal principles.

The application was dismissed, and the applicant was ordered to pay the first respondent's costs fixed at $7,328.