Ha (Migration)

This matter concerned a review applicant, Mr Kien Chi Ha, who sought to sponsor his wife, Ms Le Quin Dang, for a Subclass 309 Partner (Provisional) visa. The Administrative Appeals Tribunal (AAT) was required to determine whether the review applicant was affected by sponsorship limitations under migration regulations and, if so, whether those limitations should be waived. The review applicant had previously sponsored two other individuals for Partner visas, both of whom had been granted.

The primary legal issue before the Tribunal was whether the review applicant's previous sponsorships triggered limitations under paragraph 1.20J(1) of the relevant regulations, and if so, whether compelling and compassionate circumstances warranted a waiver under clause 1.20J(2). The Tribunal also considered the general sponsorship requirements under clause 309.213 and disclosure requirements under clause 309.222.

The Tribunal found that the review applicant was indeed affected by the sponsorship limitation due to his prior sponsorships. However, it noted that the regulations allowed for a waiver in compelling and compassionate circumstances. The Tribunal considered evidence of the review applicant's mental health issues, including depression and anxiety, his physical limitations preventing him from working or relocating to Vietnam, and his reliance on medical treatment in Australia. It also took into account the longstanding nature of his relationship with the visa applicant, their regular cohabitation when possible, and the acceptance of their marriage by their families.

Based on these considerations, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that the visa applicant met the criteria under clauses 309.213 and 309.222 of Schedule 2 to the Regulations, leaving the remaining criteria for the Subclass 309 visa to be considered by the Minister.