Sibanda (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309. The applicant sought review of a decision that refused to approve the sponsorship requirements for the visa. The core of the dispute revolved around whether regulatory limitations on sponsorship, specifically those imposed by regulation 1.20J, applied and, if so, whether those limitations could be waived.

The court was required to determine if the sponsorship requirements for the subclass 309 visa had been met, particularly in light of regulation 1.20J which limits the number of people a person can sponsor and sets minimum time lapses between sponsorships. The court also had to consider whether there were compelling and compassionate reasons to waive this limitation, as provided for in regulation 1.20J(2). The delegate had found that the five-year period since the sponsor's previous partner visa application had not elapsed, thus triggering the limitation under regulation 1.20J(1)(c), and was not satisfied that compelling circumstances warranted a waiver.

The Tribunal concluded that the matter should be remitted for reconsideration. It found that the visa applicant met the criteria under clause 309.222 of Schedule 2 to the Regulations. While the delegate had identified a breach of regulation 1.20J(1)(c) and was not satisfied with the waiver application, the Tribunal's decision indicates that further consideration of the sponsorship criteria, including the potential for waiver, was warranted. The Tribunal directed that the application be remitted to the Minister for reconsideration of the remaining criteria for a Subclass 309 visa.