Habib (Migration)

This matter concerned an application for a Prospective Marriage (Temporary) (Class TO) visa (subclass 300) made by Nader AL ALI on 7 December 2016, sponsored by Julie Habib. The applicant, a Lebanese male, sought to marry Ms Habib, a Lebanese-born female residing in Australia as a permanent resident. Ms Habib had previously arrived in Australia on a Prospective Spouse visa in 2013, but her engagement to another individual ended. She subsequently established residence in Australia and became the primary carer for her grandmother. The applicant's visa application was lodged after Ms Habib had travelled to Lebanon, become engaged again, and returned to Australia, where she had also been granted a Protection visa. The Tribunal considered the application under the jurisdiction of Robert Wilson.

The primary legal issue before the Tribunal was whether compelling circumstances existed that affected the interests of the sponsor, Ms Habib, in relation to Regulation 1.20J(2) of the Migration Regulations. This regulation imposes a five-year limitation on sponsorship, which the applicant and sponsor believed they would have avoided had they waited for this period to expire. The Tribunal also considered whether the applicant met the criteria relating to his intention to marry an eligible person, his age at the time of application, and whether the sponsor was prohibited from sponsoring him under specific provisions, including those related to previous visa grants and criminal convictions.

The Tribunal found that the five-year limitation under Regulation 1.20J had expired by the time of the Tribunal's decision, meaning the sponsor was no longer prohibited by that regulation. Consequently, the Tribunal determined it did not need to proceed to a detailed consideration of "compelling circumstances" under r.1.20J(2). However, for further assurance, the Tribunal did consider the circumstances, noting Ms Habib's depression following the breakdown of her first engagement and her ongoing role as the primary carer for her ill grandmother, who suffered from significant health issues. The Tribunal also confirmed that the applicant met the other specified criteria for the visa, including his age and the sponsor's eligibility to sponsor.

The Tribunal remitted the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration by the Minister, with a direction that the applicant met the criteria under clauses 300.211, 300.212A, 300.213, and 300.222 of Schedule 2 to the Regulations.