PHAN (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, brought by the applicant against the Minister for Immigration. The applicant's visa application had been refused by a delegate of the Minister on the grounds that the sponsor had previously successfully sponsored two partners to Australia, rendering him ineligible to sponsor the applicant without a waiver of the sponsorship limitation. The delegate had found no compelling reasons to grant such a waiver. The Administrative Appeals Tribunal was tasked with reviewing this decision.

The primary legal issue before the Tribunal was whether there were compelling circumstances affecting the sponsor that warranted a waiver of the sponsorship limitation, thereby allowing the applicant's Subclass 820 visa application to proceed. This involved an assessment of the sponsor's circumstances in light of departmental policy, which outlines examples of compelling circumstances such as the existence of a dependent child, the death of a previous partner, or a longstanding new relationship, while also emphasizing that these examples are not exhaustive and the purpose of the limitation is to prevent abuse of migration provisions.

The Tribunal found the applicant and sponsor's evidence to be genuine and credible, and accepted their oral and documentary evidence regarding their relationship. Crucially, the Tribunal noted that the delegate had not made an assessment of the evidence concerning whether the applicant was indeed the spouse or de facto partner of the sponsor. Therefore, the Tribunal concluded that the matter should be remitted for reconsideration by the Minister, with a direction that the applicant met specific criteria related to being the spouse or de facto partner of the sponsor, allowing for the assessment of the remaining criteria for the Subclass 820 visa.