2003412 (Migration)

This matter concerned an application for a Prospective Marriage (Temporary) (Class TO) visa, Subclass 300. The review applicant, who was the sponsor, had a criminal history that raised questions about the approval of his sponsorship. The dispute centred on whether the sponsorship should be approved despite the sponsor's past convictions, and whether the visa applicant met certain criteria for the visa. The decision was made by Justine Clarke, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the sponsorship of the visa applicant by the review applicant should be approved, notwithstanding the review applicant's 'significant criminal record'. This required the Tribunal to consider the provisions of regulation 1.20KC of the Migration Regulations 1994, which outlines the circumstances under which a sponsorship must be refused due to a criminal record, but also provides for exceptions where the Minister (or Tribunal) may decide to approve the sponsorship if it is considered reasonable to do so, taking into account specific matters. The Tribunal also had to determine if the visa applicant met specific criteria for the Subclass 300 visa, namely clauses 300.213 and 300.222 of Schedule 2 to the Regulations.

The Tribunal reasoned that while the review applicant possessed a 'significant criminal record' as defined by the regulations, regulation 1.20KC(4) allowed for the approval of sponsorship if it was considered reasonable, having regard to factors such as the length of time since the completion of sentences. The review applicant provided evidence that his convictions, dating back over 34 years, were from his youth and that he had since become a law-abiding citizen, serving his sentences and learning from his past mistakes. He also presented evidence of recent incidents that resulted in 'without conviction' findings, arguing they were minor and did not reflect his current character. The Tribunal found the review applicant's oral evidence credible and noted that his brother and a character reference also supported his rehabilitation and contribution to society.

Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration by the Minister. The Tribunal directed that the visa applicant met the criteria specified in cl 300.213 and cl 300.222 of Schedule 2 to the Regulations, indicating that the primary remaining hurdle was the assessment of the sponsorship in light of the review applicant's criminal history.