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Sponsorship Limitations and Compelling Circumstances

The issue in this matter was that the Sponsor was attempting to sponsor his third partner there is a sponsorship limitation.

The Sponsor had previously sponsored his first partner who was granted a Spouse visa. However, they later separated after having relationship problems and they eventually divorced. They had two children together during their marriage. The Sponsor later met his second partner and sponsored her for a 309 Spouse visa, but his second partner also abandoned him. The Sponsor then entered into a de facto relationship with an Australian citizen and he had his third child with her but they later separated. The Sponsor then met the Applicant on a dating website and their relationship began almost immediately. They established a long distance relationship and met each other in person overseas nine months later. They were married shortly after and lodged a Partner visa application together.

The Partner visa application was refused due to regulation 120J; the sponsor had already sponsored his previous two partners and was restricted from sponsoring a third partner. However, this limitation can be waived if the sponsor can demonstrate that there were compelling ‘circumstances’ present at the time of the visa application. The delegate unfortunately was not satisfied that there were compelling circumstances affecting the sponsor which would enable approval. The delegate stated that the Sponsor’s relationship with the Applicant was not long-standing, and noted that the sponsor had not travelled to visit the Applicant since their marriage. The Sponsor’s request for a waiver appeared to be based solely on his claims that he had made bad relationship choices in the past. Therefore the delegate concluded that there were no compelling circumstances that warranted a waiver of the sponsorship limitation.

An application was made to the Migration Review Tribunal (‘MRT’) to review the refusal of the decision, and Immigration Solutions Lawyers (‘ISL’) took over the matter and handled the MRT lodgement. The Sponsor was invited to provide information regarding his compelling circumstances in order to waive the 120J requirement. The compelling circumstances were that the Applicant’s first spouse abandoned him and his children on two separate occasions and then for a final time. After the first spouse abandoned him, the Sponsor was driving and was rammed by another driver who was the person with whom his first partner was having an affair. The Sponsor was hospitalised, suffered post-traumatic stress disorder and had to resign from his job. The second time that the Applicant’s first spouse abandoned him he went through a property settlement and custody battle which caused him severe stress and mental health issues. When his second partner left him his mental health and depression deteriorated further. He then became involved in a de facto relationship with an Australian citizen for five years but this ended with the de facto partner leaving him and taking their child which again contributed to the deterioration of his mental health. The Sponsor would also not be able to leave Australia to live with the Applicant overseas because he is responsible for caring for his two children as well as his elderly parents.

The Sponsor did not misuse migration provisions in the past and the Tribunal was satisfied that the Applicant was in a genuine and continuing relationship with the Sponsor. Therefore they only had to consider whether there were compelling circumstances that enabled the waiver. The Sponsor was unaware at the time he married the Applicant that sponsorships were limited and he only discovered the limitation a year after his spouse lodged her application.

ISL was successful in securing the waiver; the Tribunal remitted the decision for reconsideration with the direction that the 120J requirement was waived.

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