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Third sponsorship allowed for genuine spousal relationship

Regulation 1.20J waived

The Sponsor obtained Australian Citizenship and married his first wife, an Australian Citizen. The marriage broke down 4 years later. In 1987, the Sponsor then re- married and sponsored his first spouse on a Spouse Visa. The first spouse subsequently arrived in Australia and lived together with the Sponsor. After 12 years living together they experienced relationship difficulties and the first spouse asked for a divorce. Surprised, the Sponsor eventually came to an agreement whereby he paid the first spouse $20,000 and she left him with their daughter.

The Sponsor began another relationship 7 years later. He married his second spouse and in 2007 sponsored her on a subclass 820 partner visa to Australia.  However, they did not live together before or after their marriage, she had stayed over at his place several times and left clothes at his place. The second spouse was busy with her two jobs and they did not have the opportunity to see other as much as the Sponsor would have expected. The second spouse obtained a subclass 820 partner (temporary) visa two months after her application. The second spouse called the Sponsor two weeks after she had been granted the visa, claiming that her mother was ill and she needed to return to her home country to care for her and that she would be in contact. Three months later, the Sponsor had his first contact with his second spouse since she had been in her home country. This situation of minimal contact continued for many months.  Over time, the Sponsor was told by people in the community in Australia that they had seen the second spouse in Sydney and that she was not in her home country. Several months later, the second spouse called the Sponsor, who then confronted her with what he had heard. The Sponsor informed the second spouse he was withdrawing sponsorship, he informed DIAC of the sponsorship withdrawal. The Sponsor was deceived and abandoned by the second spouse in obtaining an Australian visa.

In 2009, the Sponsor met the Applicant. In early 2010, the Sponsor and Applicant commenced cohabitation. The Applicant developed a close relationship with the Sponsor’s daughter whilst they lived together. They married after five months. In 2011, the Applicant lodged the Condition 8503 waiver request with DIAC, however the waiver was unsuccessful. The Applicant chose to leave Australia with the Sponsor and returned to her home country. The Applicant lodged a subclass 309 visa application under the sponsorship of the Sponsor at DIAC in her home country in June 2011 when they lived apart. The Sponsor returned to Australia a month later and they maintained the relationship via daily phone calls and regular Skype video-chat.

The Sponsor began to suffer from medical illnesses which required urgent surgery, he was unable to sleep well and required the assistance of his daughter. Under Regulation 1.20J of the Migration Regulations, a person may enter into two approved spouse, de facto partner, fiancé or interdependency sponsorships in a lifetime. Regulation 1.20J codifies policy which applies to visa applications made on or after 1 November 1996.  As the Sponsor has previously sponsored two of his former spouses, sponsorship limitations would apply if he sponsors his third spouse (the applicant) on a subclass 309 partner visa.

The MRT assessed the genuineness of the relationship, which are also relevant criteria for the grant of the visa. The applicants had been married, lived together and their desire to try to conceive a child together. The MRT accepts the relationship is long standing.

The MRT has also taken into consideration the following other circumstances:

  • Emotional and psychological distress
  • Stable employment
  • Resided at the same address for an extensive time
  • Relationship with family who are Australian Citizens
  • IVF treatments – age and health conditions

 

The MRT was satisfied that there are compelling circumstances affecting the sponsor and therefore it exercised its power to approve to waive Regulation 1.20J to approve the sponsorship of the Applicant because it is so satisfied.

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