He (Migration)

The Administrative Appeals Tribunal considered the application of a visa applicant seeking a Partner (Temporary) (Class UK) visa, specifically a Subclass 820 (Partner) visa. The dispute centred on whether Regulation 1.20KA of the Migration Regulations 1994 applied to limit or prevent the approval of the applicant's sponsorship.

The Tribunal was required to determine if the applicant met the criteria for sponsorship under Clause 820.211, which includes requirements for the applicant to be sponsored by an eligible person and for the sponsorship to be approved by the Minister. Crucially, the Tribunal had to assess the applicability of Regulation 1.20KA, which imposes a five-year waiting period for individuals granted a Subclass 143 or Subclass 864 visa to sponsor another person for a Partner or Prospective Marriage visa, unless compelling circumstances exist.

The Tribunal found that the sponsor had been granted a Contributory Parent visa on 23 November 2015. The applicant and sponsor had married in 2005, divorced in 2013, and remarried in July 2016, lodging the current Partner visa application on 1 August 2016. Regulation 1.20KA applies if the person to be sponsored was the sponsor's spouse or de facto partner on or before the date the Subclass 143 or 864 visa was granted, and a five-year period has not elapsed. The Tribunal considered whether compelling circumstances, other than financial ones, existed for the applicant not applying at the same time as the sponsor for their Contributory Parent visa, or for withdrawing such an application.

The Tribunal remitted the application for a Partner (Temporary) (Class UK) visa to the Minister with a direction that the applicant meets the criteria under cl.820.211(2)(c) and cl.820.221(4) of Schedule 2 to the Regulations, indicating that the issue of Regulation 1.20KA was resolved in favour of the applicant, allowing for further consideration of the remaining visa criteria.