Nguyen (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) (Subclass 820) visa by Ms Thi Thanh Tam Nguyen, a citizen of Vietnam, sponsored by her husband, Mr Thanh Hung Dao, an Australian citizen. The core dispute revolved around Regulation 1.20J(1)(a) of the Migration Regulations 1994, which prohibited the sponsor from sponsoring a further party due to having previously been granted two relevant permissions as a spouse, de facto partner, or prospective spouse of another person. The Tribunal was required to determine whether compelling circumstances affecting the sponsor, as contemplated by Regulation 1.20J(2), existed to allow for a waiver of this prohibition.

The Tribunal considered the meaning of "compelling circumstances," noting that they must be sufficiently convincing and powerful to persuade a decision-maker to exercise discretion to waive the requisite criteria, drawing on authorities such as *MZYPZ v MIAC* and *Babicci v MIMIA*. The Tribunal found that the sponsor had indeed been granted two prior relevant permissions, thus failing to satisfy subclause 820.211(2)(c). The central issue then became whether compelling circumstances, pursuant to Regulation 1.20J(2), could be established. The Tribunal examined extensive evidence presented by the parties, including the serious health complications of their Australian citizen daughter, who has a significant hearing impairment requiring ongoing medical treatment. It also considered the long-standing nature of the parties' relationship, their strong bond with their daughter, and the significant emotional, psychological, and financial impacts on the sponsor should the family be separated or relocated to Vietnam.

The Tribunal concluded that the circumstances surrounding the care of the child, the long-standing relationship, and the potential emotional, psychological, and financial distress to the sponsor constituted compelling circumstances affecting the sponsor. Consequently, the Tribunal remitted the application for the visa to the Minister with a direction that the applicant meets the criteria under cl 820.211(2)(c) of Schedule 2 to the Regulations.