Michalke (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309. The applicant sought review of a decision to refuse the visa. The central issue was whether the applicant's sponsor, Mr Michalke, met the sponsorship requirements under the Migration Regulations 1994 (Cth).

The Tribunal was required to determine if the sponsorship had been approved and was still in force, as mandated by clause 309.222. This involved considering the limitations imposed by regulation 1.20J, which restricts a sponsor to a maximum of two approved sponsorships for partner visas or visas granted under domestic violence provisions. Crucially, if a sponsor has had one previous sponsorship, a minimum of five years must elapse from the date of the earlier visa application, unless compelling circumstances justify a waiver.

The Tribunal considered Mr Michalke's personal circumstances, including his Australian birth, his return to Australia for work, and the deaths of his father and brother. It also noted his previous sponsorship of a partner who returned to Germany in April 2016, and that five years had not yet passed since that earlier visa application. The Tribunal applied the principles from *Babicci v MIMIA* [2004] FCA 1645 and [2005] FCAFC 77, interpreting "compelling circumstances" as those that evoke interest or attention in a powerfully irresistible way, or are so powerful as to lead to a positive finding that the provision should be waived.

Ultimately, the Tribunal was not satisfied that compelling circumstances existed to waive the five-year waiting period. Consequently, the sponsorship requirements under clause 309.222 were not met. The Tribunal affirmed the decision not to grant the visa.