Dinh (Migration)

This matter concerned an appeal by a visa applicant against a decision regarding a Partner (Provisional) (Class UF) visa, Subclass 309. The central issue before the Tribunal was whether a sponsorship limitation, imposed by regulation 1.20J of the Migration Regulations 1994, should be waived. The applicant sought to have this limitation waived to allow their partner to sponsor them for the visa.

The Tribunal was required to determine if the sponsorship requirements for the Subclass 309 visa were met, specifically in light of the limitations imposed by regulation 1.20J. These limitations restrict the number of people an individual can sponsor throughout their lifetime and mandate a minimum time lapse between sponsorships. The Tribunal also considered whether compelling circumstances existed that would justify waiving this sponsorship limitation.

The Tribunal found that the sponsor had established a long-term relationship with the applicant, dating back to 2011, and that they had subsequently married. Evidence indicated regular visits and cohabitation between the parties. Furthermore, the sponsor had dependent adult children from a previous relationship who considered the applicant their stepfather and wished to be reunited with him. The Tribunal was satisfied, based on additional information including evidence from a doctor and a community social worker, that the sponsor had suffered significant detriment from the applicant's absence and the protracted review process. These factors were considered to constitute "compelling circumstances affecting the sponsor" that could ground a waiver of the sponsorship limitation under regulation 1.20J(1)(a).

Consequently, the Tribunal remitted the application for the Partner (Provisional) visa to the Minister for reconsideration. The remittal was made with a direction that the visa applicant met the criteria under clauses 309.213 and 309.222 of Schedule 2 to the Regulations, subject to the waiver of the sponsorship limitation.