Promthong (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant sought review of a delegate's decision to refuse the visa, which was based on limitations on the visa sponsor's ability to sponsor. The core of the dispute revolved around the application of regulation 1.20J of the Migration Regulations 1994, which imposes restrictions on the number of times a person can sponsor a partner visa and the time that must elapse between sponsorships.

The Tribunal was required to determine whether regulation 1.20J applied to limit the applicant's sponsorship and, if so, whether the requirement could be waived. Regulation 1.20J(1)(b) stipulates that if a sponsor has had one previous sponsorship approved, a period of five years must have elapsed since the date of the earlier visa application, unless the Minister or the Tribunal is satisfied that compelling circumstances exist to waive this requirement under regulation 1.20J(2). The delegate had refused the visa on the basis that the sponsor's prior sponsorship, approved on 8 January 2017, was within five years of the primary decision, and no compelling circumstances for a waiver were found.

The Tribunal reasoned that while regulation 1.20J(1)(b) initially applied to limit the sponsorship, the effluxion of time during the review process meant that the five-year period had elapsed by the time of the Tribunal's decision. The Tribunal was satisfied, based on the documentary evidence, that the visa sponsorship was no longer limited by regulation 1.20J. Consequently, the Tribunal found that the applicant met the criteria under regulation 1.20J for the purposes of clause 820.221(4) of Schedule 2 to the Regulations.

The Tribunal remitted the application for the Partner (Temporary) (Class UK) visa, Subclass 820, to the Minister with a direction that the applicant meets the criteria under regulation 1.20J. This remittal allowed for the consideration of the remaining criteria for the visa.