Tribunal: Member Peter Emmerton

An application for a Prospective Marriage visa was refused by a delegate of the Minister for Immigration and Border Protection. On 16 February 2018, the Administrative Appeals Tribunal affirmed the decision.

The sponsor is an 81 year old Australian Citizen and the visa applicant is a 44 year old from China. The sponsor had successfully sponsored three previous partners for similar visas. He was married to the first partner from 1958 until they divorced in 2005. After this, the second partner was sponsored for a visa and the pair were married in 2008 and divorced in 2012. The third partner’s visa application was made in February 2013 and was refused due to sponsorship limitations. This decision was appealed to the Migration Review Tribunal, which remitted the decision with the direction to grant the visa.  The visa was granted in August 2014. On 29 September 2014 the sponsor sent a signed withdrawal of his sponsorship in that application. The third partner only resided in Australia from 29 August 2014 until 10 September 2014. The fourth partner was then sponsored and that visa application was the one before the Tribunal.

Section 1.20J of the Migration Regulations 1994 sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsor of no less than five years. The sponsor failed both of these requirements.

Section 1.20J(2) provides that the Tribunal may approve the sponsorship of a visa applicant, waiving the sponsorship limitation, if the Tribunal considers that there are compelling reasons affecting the sponsor. The sponsor provided that he is single, that he lives alone and because of his poor English language skills, would find it hard to find a partner. He went on to say that he would like someone to look after him when he grows old and expressed a concern that if something happened to him when he was alone, no one would know. His partner had expressed a willingness to look after him, provide companionship and stay with him until he died. He also stated that being alone affects how he feels emotionally and his health.

The Tribunal cited the case of Babicci v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 77 in determining the appropriate approach to exercising the discretion to waive the sponsorship limitation. That case broadly provided that the Tribunal should consider whether there were compelling circumstances that were so powerful that they lead the decision maker to make a positive finding that the prohibition should be waived.

The Tribunal stated that the review applicant raised several issues for which the Tribunal has empathy. However, none of those in the Tribunal’s view reached the high bar required to meet the definition of compelling circumstances.

For the reasons above, the Tribunal found the visa applicant did not satisfy the criteria for the grant of the visa and the decision not to grant the visa application was affirmed.

Read the full written decision on Austlii.