Jin (Migration)

The Administrative Appeals Tribunal considered the matter of a visa applicant and their sponsor. The central dispute concerned whether the sponsor met the requirements of regulation 1.20KA of the Migration Regulations 1994 (Cth) for the purposes of clause 309.222 of the Regulations, which governs sponsorship for a Partner visa. The applicant, born in 1955, and the sponsor, born in 1958, both from Shanghai, China, had been married since 1982 and had one child.

The primary legal issue before the Tribunal was to determine if the sponsorship requirements under regulation 1.20KA were satisfied. This regulation imposes a time limit on when certain visa holders, specifically those granted a Subclass 143 (Contributory Parent) or Subclass 864 (Contributory Aged Parent) visa on or after 1 July 2009, can sponsor another person for a Partner or Prospective Marriage visa. If the sponsored person was the sponsor's spouse or de facto partner at the time the Subclass 143 or 864 visa was granted, a five-year waiting period must elapse from the date of the sponsor's visa grant.

The Tribunal reasoned that the sponsor was granted a Subclass 143 visa on 2 November 2015. The applicant and sponsor married on 27 November 1982, which was prior to the sponsor's Subclass 143 visa grant. Crucially, the Tribunal noted that at the time of its decision, more than five years had passed since the sponsor's visa was granted. Therefore, the limitation imposed by regulation 1.20KA was no longer applicable. The Tribunal was satisfied that the requirements of regulation 1.20KA were met.

Consequently, the Tribunal remitted the application for a Partner (Provisional) (Class UF) visa for reconsideration by the Minister, with a direction that the visa applicant met the criteria under regulation 1.20KA for a Subclass 309 visa. The Minister was to consider the remaining criteria for the visa.