1820420 (Migration)

This matter concerned an application for a Prospective Marriage (Temporary) (Class TO) visa, subclass 300. The review applicant was the sponsor, and the dispute centred on whether the sponsorship requirements were met, specifically concerning limitations on the number of times a person can sponsor a partner visa. The Tribunal was tasked with determining if the sponsorship limitation under regulation 1.20J of the Migration Regulations 1994 should be waived due to compelling circumstances.

The legal issues before the Tribunal were whether the visa applicant was sponsored as required by clause 300.213, and whether the sponsorship, as referred to in clause 300.222, had been approved and remained in force, considering the limitations imposed by regulation 1.20J. Regulation 1.20J restricts a sponsor to a lifetime total of two approved sponsorships or nominations that lead to the grant of a partner visa, unless compelling circumstances affecting the sponsor exist. The Tribunal was required to assess if the sponsor's previous sponsorships, which resulted in partner visas being granted to two individuals, were genuine and if the circumstances surrounding these previous relationships constituted compelling reasons to depart from the sponsorship limitation.

The Tribunal found that the visa applicant was sponsored by the review applicant, who met the age requirement under clause 300.213. However, the Tribunal noted that the review applicant had previously sponsored two individuals, Ms [A] and Ms [B], who were granted partner visas. The review applicant provided evidence that his marriage to Ms [A] in Vietnam in 1973 was genuine, that they had two children, and that he escaped Vietnam alone due to the dangers of the journey for his family. His wife and children later migrated to Australia in 1984, and he divorced Ms [A] in 2002. The Tribunal considered the meaning of "compelling circumstances" as explained in *Babicci v MIMIA*, requiring circumstances that evoke interest or attention in a powerfully irresistible way or are so powerful as to lead to a positive finding that the provision should be waived.

Given the findings, the Tribunal remitted the application for reconsideration. The Tribunal directed that the visa applicant met the criteria under cl.300.213 and cl.300.222 of Schedule 2 to the Regulations, implying that the sponsorship limitation was either met or waived due to compelling circumstances, and that the Minister should consider the remaining criteria for the visa.