Zhong (Migration)

The applicant, Zhong, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse a Partner (Temporary) (Class UK) visa (subclass 820). The primary issue before the Federal Circuit and Family Court of Australia was whether there were compelling circumstances to justify a waiver of the Schedule 3 criteria, which typically require the applicant to hold a substantive visa at the time of application.

The court was required to determine whether the delegate had erred in law by failing to properly consider the evidence presented regarding compelling circumstances for the waiver of Schedule 3. Specifically, the court had to assess whether the delegate had adequately considered the applicant's stated intention to start a family with her partner and the duration of their relationship in the context of the Schedule 3 waiver provisions.

Justice McGowan found that the delegate's decision contained an error of law. The delegate had failed to give sufficient weight to the evidence concerning the applicant's plans to start a family and the established duration of the relationship, which were relevant factors in assessing compelling circumstances for a Schedule 3 waiver. The delegate's reasoning did not adequately explain why these factors, when considered together, did not amount to compelling circumstances. Consequently, the decision under review was remitted to the Minister for redetermination according to law.