Santos Castro (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, subclass 820, where the primary issue was whether the sponsor had exceeded the limit on the number of previous sponsorships permitted under regulation 1.20J(1)(a) of the Migration Regulations 1994. The applicant sought a waiver of this requirement under regulation 1.20J(2), arguing compelling circumstances related to the sponsor's mental health and the applicant's emotional support. The Administrative Appeals Tribunal considered the delegate's decision to refuse the visa on the grounds that the sponsor had two prior sponsorships, thus failing to meet the requirement of sponsoring no more than one other person.

The legal issue before the Tribunal was whether the delegate had adequately considered the compelling circumstances presented by the applicant and sponsor to justify a waiver of the sponsorship limit under regulation 1.20J(2). Specifically, the Tribunal needed to determine if the delegate's finding that there were no compelling circumstances affecting the sponsor if the application were refused was made without a proper hearing of the relevant evidence. The Tribunal noted that regulation 1.20J(1)(a) limits a sponsor to having sponsored no more than one other person for a relevant visa, and regulation 1.20J(2) allows for a waiver if there are compelling circumstances affecting the sponsor.

The Tribunal reasoned that the delegate's decision was made without a full hearing of the evidence concerning the sponsor's mental health and the applicant's role in providing emotional support. It was found that the delegate had not properly considered the impact on the sponsor if the visa application were refused, which is a key element of regulation 1.20J(2). Consequently, the Tribunal concluded that the matter should be remitted for reconsideration to allow for a proper assessment of the compelling circumstances. The Tribunal remitted the application for a Partner (Temporary) (Class UK) visa, subclass 820, with a direction that the applicant met criterion cl 820.221(4) of Schedule 2 to the Regulations.