Nguyen (Migration)

The Administrative Appeals Tribunal considered a Partner (Provisional) visa (Subclass 309) application where the sponsor had previously sponsored two other partners. The delegate had refused to approve the sponsorship, finding that compelling circumstances did not exist to allow for a waiver of the sponsorship limitation under clause 1.20J(2) of the Migration Regulations 1994. The sponsor, an Australian citizen, had experienced a divorce due to compatibility issues in his first marriage and infidelity by the sponsored applicant in his second marriage.

The primary legal issues before the Tribunal were whether the sponsor met the requirements for compassionate and compelling circumstances to justify a waiver of the sponsorship limitation, and whether the relationship between the sponsor and the visa applicant was longstanding. The sponsor argued that his declining health, including chronic asthma and a heart condition, necessitated the companionship and care of his wife, the visa applicant, who wished to provide this support. The Tribunal was also required to consider the sponsor's previous unsuccessful sponsorships in light of the limitations imposed by the regulations.

The Tribunal found that the relationship between the sponsor and the visa applicant had been maintained for over five years, commencing in 2016. It acknowledged the sponsor's poor health and his need for assistance with household duties, which his wife was willing to provide. Despite the sponsor's previous unsuccessful sponsorships, the Tribunal concluded that the matter should be remitted for reconsideration by the Department.

The Tribunal remitted the application for the Partner (Provisional) visa for reconsideration, directing that the visa applicant met the criteria under cl.309.213 and cl.309.222 of Schedule 2 to the Regulations. This indicated that the Tribunal was satisfied with the visa applicant's eligibility under those specific clauses, but the sponsorship limitation and the waiver provision required further consideration by the Department.