Ly (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by the applicant. The sponsor was the applicant's spouse, who had previously been granted a Contributory Parent visa (Subclass 143). The dispute centred on whether the sponsorship met the requirements of Regulation 1.20KA of the Migration Regulations 1994, which imposes a five-year waiting period after the grant of a Contributory Parent visa before the holder can sponsor their spouse for a Partner visa. The decision was made by a Member of the Tribunal.

The primary legal issue before the Tribunal was whether Regulation 1.20KA applied to prevent or limit the approval of the sponsorship for the Subclass 820 visa. This regulation stipulates that if a holder of a Subclass 143 or Subclass 864 visa, granted on or after 1 July 2009, wishes to sponsor their spouse or de facto partner for a Partner or Prospective Marriage visa, a period of five years must have elapsed since the grant of the sponsor's visa. The Tribunal was required to determine if this five-year period had passed and, if not, whether there were compelling circumstances that would allow an exception under Regulation 1.20KA(3).

The Tribunal reasoned that the sponsor's Subclass 143 visa was granted on 30 September 2014, and the applicant applied for the Subclass 820 visa on 18 May 2015. The five-year limitation period under Regulation 1.20KA(2) therefore ran from 30 September 2014 to 30 September 2019. As the applicant's visa application was made within this five-year period, the sponsorship would ordinarily be limited by this regulation. However, the Tribunal noted that the delegate had not assessed the primary criteria for the visa. Given the circumstances, the Tribunal concluded that the matter should be remitted for reconsideration by the Minister to consider the remaining criteria for the Subclass 820 visa. The Tribunal directed that the applicant met the criteria under cl 820.211(2)(c) and cl 820.221(4) of Schedule 2 to the Regulations.