Haynes (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Spouse). The applicant, a citizen of the United Kingdom, had been in Australia since 2015 and had been on bridging visas since lodging her application in October 2016. The sponsor was an Australian citizen. The parties had entered into a civil partnership in July 2016 and had a daughter born in November 2017. The central dispute arose because the sponsor had previously sponsored a spouse, Ms Ibarra, who was granted a permanent visa in March 2015. This resulted in a five-year sponsorship limitation for the sponsor, which would have ended in October 2017. The applicant's visa application was lodged in August 2017, shortly before this exclusion period concluded. The decision was made by Senior Member Ann Duffield of the Tribunal.

The primary legal issue before the Tribunal was whether the sponsor was barred by Regulation 1.20J from sponsoring the applicant due to the previous sponsorship. This required the Tribunal to consider whether there were compelling circumstances that warranted a waiver of this sponsorship limitation. The parties provided extensive evidence, including personal statements detailing their circumstances, evidence of their relationship and child, supporting statements from friends and family, and financial documentation.

The Tribunal reasoned that the sponsor was likely no longer barred from sponsoring the applicant, given that the exclusion period had passed by the time of the decision, some 16 months after its expiry. However, even if the sponsor were still considered barred, the Tribunal found that the parties' circumstances constituted compelling reasons for a waiver. These circumstances included the birth of their daughter, the genuine and ongoing nature of their relationship, their mutual commitment, and the mental health issues experienced by both parties. The Tribunal concluded that the hardship that would be suffered by the parties if the sponsorship were not approved would amount to compelling circumstances, particularly concerning the potential impact on their mental health and the separation of their family unit.

Consequently, the Tribunal remitted the application for reconsideration by the Minister. The Tribunal directed that the applicant met the criteria under cl.820.221(4) of Schedule 2 to the Regulations and regulation 1.20J, indicating that the sponsorship limitation was waived.