Shaheem (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309, made by an applicant seeking to migrate to Australia as the spouse of an Australian citizen. The central dispute revolved around whether the sponsor had met the relevant sponsorship requirements, and if not, whether these requirements could be waived due to compelling circumstances affecting the sponsor. The decision was made by Russell Matheson, a Member of the Tribunal.

The primary legal issue before the Tribunal was to determine if the sponsorship requirements under Regulation 1.20J of the Migration Regulations 1994 were met. Specifically, the Tribunal had to consider the limitations on the number of times a person could sponsor another for a partner visa in their lifetime, and the minimum time that must elapse between sponsorships. The Tribunal was also required to assess whether there were "compelling circumstances" affecting the sponsor that would justify waiving these requirements, as permitted by Regulation 1.20J(2).

The Tribunal noted that the sponsor had previously entered into two approved spouse sponsorships. Regulation 1.20J(1)(c) limits a person to a maximum of two approved spouse, fiancé, or interdependency sponsorships in their lifetime. Furthermore, if there has been one previous sponsorship, a period of five years must have passed since the date of the earlier visa application. In this case, five years had passed since the date of the second successful visa application. The Tribunal concluded that the matter should be remitted for reconsideration, with a direction that the visa applicant met specific criteria under clauses 309.213 and 309.222 of Schedule 2 to the Regulations.