PATEL (Migration)

This matter concerned an application for a Prospective Marriage (Temporary) (Class TO) visa (Subclass 300) by a citizen of India. The review applicant, the sponsor, was an Australian citizen who had previously been married. The sponsor had previously been approved as a sponsor for his former wife's Partner visa application, which was granted. The Department's delegate determined that a five-year sponsorship limitation under Regulation 1.20J applied to the sponsor's current sponsorship of the visa applicant, and found no compelling circumstances to waive this limitation. The Administrative Appeals Tribunal considered whether the sponsorship requirements for the Subclass 300 visa were met.

The Tribunal was required to determine if the sponsorship requirements under clauses 300.213 and 300.222 of Schedule 2 to the Migration Regulations 1994 were satisfied. Specifically, the Tribunal had to consider the impact of Regulation 1.20J, which imposes a five-year waiting period after a previous successful sponsorship before a person can sponsor another individual for a partner or prospective marriage visa, unless compelling circumstances justify a waiver. The Tribunal also had to consider the date of the previous visa application and the subsequent five-year period.

The Tribunal found that the sponsor had indeed been approved as a sponsor for his previous wife's Partner visa application, and that she had been granted a visa on that basis. Consequently, Regulation 1.20J applied, preventing the sponsor from sponsoring another person for a visa such as the Subclass 300 visa for a period of five years from the date his previous wife lodged her application, which was 8 April 2014. The Tribunal noted that this five-year period elapsed on 18 April 2019.

Given these findings, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that the visa applicant met the criteria under clauses 300.213 and 300.222 of Schedule 2 to the Regulations, allowing the Minister to consider the remaining criteria for the Subclass 300 visa.