Rahman (Migration)

This matter concerned an appeal by a visa applicant, a citizen of Bangladesh, against a decision regarding her Partner (Provisional) (Class UF) visa application. The review applicant, who was the sponsor, had previously been granted a Contributory Parent visa. The dispute centred on whether the sponsor met the requirements for sponsoring the visa applicant, particularly in light of limitations imposed by the Migration Regulations 1994. The case was heard by Stephen Conwell.

The primary legal issue before the Tribunal was whether the sponsorship requirements for the Subclass 309 Partner (Provisional) visa were met. Specifically, the Tribunal had to determine if the sponsor was eligible to sponsor the visa applicant, considering the limitations prescribed by regulation 1.20KA of the Migration Regulations 1994, which restricts individuals who have been granted a permanent Contributory Parent visa from sponsoring another person for a Partner visa for a period of five years.

The Tribunal found that the delegate had erred in their initial assessment by incorrectly referencing subclause 309.211(2)(c). The Tribunal clarified that subclause 309.211(2) relates to the applicant being the spouse or de facto partner of the sponsor at the time of application, a fact the delegate had accepted. The core of the delegate's decision was based on regulation 1.20KA, which prohibits sponsorship for five years from the grant of a permanent Contributory Parent visa. The sponsor was granted this visa on 20 February 2015, meaning the five-year restriction expired on 20 February 2020. As the Tribunal was required to consider the application afresh and the five-year period had elapsed by the time of the Tribunal's decision, the restriction under regulation 1.20KA no longer applied. The Tribunal was satisfied that other sponsorship limitations under regulations 1.20J, 1.20KB, and 1.20KC did not apply to the sponsor.

The Tribunal concluded that the visa applicant met the criteria under cl.309.213 and cl.309.222(1) of Schedule 2 to the Regulations. Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that these specific criteria for the Subclass 309 visa were met.