Rogers (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal concerning a Partner (Provisional) (Class UF) visa, Subclass 309. The visa applicant sought reconsideration of a decision that had been made regarding their eligibility for the visa. The core of the dispute revolved around whether the sponsorship requirements, specifically those relating to the time elapsed since a previous visa application by the sponsor, had been met.

The Tribunal was required to determine whether the visa applicant met the criteria set out in cl.309.222 of the Regulations at the time of the decision. This involved assessing the sponsorship requirements, including whether the sponsor was eligible to sponsor and whether the necessary time period had elapsed since the sponsor's previous visa application, as stipulated by r.1.20J of the Regulations. The Tribunal also needed to consider whether compelling circumstances existed that would allow for an exception to the usual time lapse requirement.

The Tribunal noted that the sponsor, an Australian citizen over 18, had previously sponsored another individual for a Prospective Marriage visa lodged in November 2013 and an onshore Partner visa lodged in February 2015. Regulation 1.20J mandates a five-year period to lapse between a previous visa application and a subsequent sponsorship, unless compelling circumstances are demonstrated. While the five-year period had not elapsed at the time of the initial decision, it had elapsed during the review process. The Tribunal concluded that, given the circumstances and the fact that a primary assessment of the genuineness of the relationship had not yet been made by the Department, the most appropriate course of action was to remit the applications for reconsideration.

The Tribunal remitted the applications for Partner (Provisional) (Class UF) visas for reconsideration by the Minister, with a direction that the first named visa applicant meets the criteria specified in cl.309.222 of Schedule 2 to the Regulations. Submissions and evidence relating to the genuineness of the relationship were to be forwarded to the Department for consideration upon remittal.