Abrahimzadah (Migration)

The Administrative Appeals Tribunal considered an appeal by Ms. Son, the visa applicant, and Mr. Abrahimzadah, the sponsor, concerning a Partner (Provisional) (Class UF) visa application. The central dispute revolved around whether "compelling reasons" existed to waive certain visa criteria, specifically relating to the sponsor's previous sponsorships, and whether the applicant was the spouse of the sponsor as defined by the Migration Act 1958 (Cth).

The Tribunal was required to determine if the sponsor's previous two sponsorships to Australia constituted a barrier to the current application, and if so, whether compelling circumstances justified waiving this requirement under Regulation 1.20J(2) of the Migration Regulations 1994. Additionally, the Tribunal had to assess if the relationship between Ms. Son and Mr. Abrahimzadah met the definition of a spouse under section 5F of the Act, considering the various aspects of their relationship as outlined in Regulation 1.15A.

The Tribunal reasoned that while Regulation 1.20J(1)(a) limits the number of sponsorships, Regulation 1.20J(2) allows for exceptions where compelling circumstances exist. The Tribunal found compelling reasons to waive the sponsorship limit, noting the parties' relationship since mid-2012, their Australian citizen son born in 2017 who could not live with his mother due to her visa status, and the sponsor's elderly mother's desire to meet her daughter-in-law and grandson. The Tribunal also considered the sponsor's previous marriages, accepting his evidence that they failed due to his partners' decisions to leave, not his own actions. The Tribunal applied the principles from *MZYPZ v MIAC* and *Babicci v MIMIA*, which state that compelling reasons must be sufficiently convincing to warrant waiving criteria, and that such circumstances can arise after the initial application, as per *Waensila v MIBP*.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that the visa applicant met the relevant criteria under Regulation 1.20J(2), Clause 309.211, and Clause 309.221 of Schedule 2 to the Regulations.