Singh (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309, made by a citizen of India. The review applicant, an Australian citizen, was the sponsor. The core of the dispute revolved around a sponsorship limitation imposed on the review applicant due to a previous relationship that did not proceed to marriage, and the visa applicant's assertion of compassionate circumstances arising from the lengthy separation this limitation would impose. The decision was made by Mila Foster, a Member of the Tribunal.

The legal issues before the Tribunal were whether the visa applicant met the criteria for a Subclass 309 visa, particularly in light of the review applicant's prior sponsorship history and the potential for a five-year separation. The Tribunal was required to consider the nature and duration of the parties' relationship, including their financial, household, social, and commitment aspects, as outlined in regulation 1.15A of the Migration Regulations 1994. The Tribunal also had to determine if compassionate circumstances warranted an exception or special consideration regarding the sponsorship limitation.

The Tribunal found the review applicant to be a credible witness, whose oral evidence was consistent with other evidence presented. The Tribunal considered the totality of the evidence, including written statements, statutory declarations, affidavits from family members, and documentation relating to the parties' wedding. It noted that while the parties had answered "no" to questions about previous sponsorships or relationships, the visa applicant later explained this was due to a misunderstanding of sponsorship rules and a belief that a withdrawn previous sponsorship, which did not lead to marriage, did not need to be disclosed. The Tribunal acknowledged the parties' stated intention to start a family and the hardship of a prolonged separation.

Consequently, the Tribunal remitted the application for the visa to the Minister for reconsideration. The Tribunal directed that the visa applicant met specific criteria for a Subclass 309 visa, namely cl 309.211, cl 309.213, cl 309.221, and cl 309.222 of Schedule 2 to the Regulations.