Pham (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, Subclass 309, made by Ms. Pham. The dispute arose because the sponsor's permanent visa had been granted less than five years prior to the application, triggering a sponsorship limitation under migration law. The Administrative Appeals Tribunal (AAT) was tasked with reviewing a decision made by the Department of Home Affairs.

The primary legal issue before the Tribunal was whether the sponsorship limitation prevented the grant of the visa, or if the limitation period had since expired, rendering it irrelevant to the current assessment. The Tribunal also had to consider whether the Department had made a decision without adequately assessing all the necessary criteria, particularly the genuineness of the relationship.

The Tribunal reasoned that the objective criteria in clause 309.222 of Schedule 2 to the Regulations were satisfied. Crucially, the Tribunal noted that a primary assessment of the genuineness of the relationship had not yet been undertaken by the Department. Given this, and the fact that the sponsorship limitation period had now passed, the Tribunal determined that the most appropriate course of action was to remit the application back to the Minister for reconsideration of the remaining criteria for a Subclass 309 visa. The Tribunal directed that the visa applicant met the criteria in cl.309.222.