Nguyen (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309, where the primary issue was whether the sponsorship limitation under regulation 1.20KA(2) could be waived due to compelling circumstances, pursuant to regulation 1.20KA(3). The review applicant, who had previously been granted a Subclass 143 Contributory Parent visa on 9 April 2015, sought to sponsor the first visa applicant, a citizen of Vietnam, whom the review applicant claimed to have remarried. The visa application was refused by a delegate of the Minister on the basis that the sponsor had not held her Subclass 143 visa for the required five years. The review applicant sought review of this decision by the Tribunal.

The Tribunal was required to determine whether there were compelling reasons, other than financial ones, to waive the sponsorship limitation imposed by regulation 1.20KA(2). This regulation stipulates that a sponsor who holds a Subclass 143 visa must have held it for at least five years before they can sponsor another person for a Partner visa. The Tribunal also considered clause 309.222 of Schedule 2 to the Regulations, which relates to sponsorship requirements.

The Tribunal reasoned that the sponsor's Subclass 143 visa was granted on 9 April 2015, and the partner visa application was made on 21 April 2017. This meant the sponsor had not yet held the Subclass 143 visa for the requisite five years. However, the Tribunal noted that the sponsor and the first visa applicant claimed to have remarried in October 2016, after a period of friendship following a previous divorce. The Tribunal also considered the circumstances of the second and third visa applicants, the sponsor's adult daughter and grandson, who were included in the application. The Tribunal concluded that the matter should be remitted for reconsideration, directing that the first visa applicant met the criteria under clause 309.222 of Schedule 2 to the Regulations. The Tribunal also cautioned that the Department might refuse the visa on other grounds, such as whether the second and third visa applicants were members of the same family unit as the spousal couple.