This story starts off with a happy married couple who applied for a partner visa on the basis of their genuine married relationship. No problem there, except for one thing – the sponsor had previously sponsored two other partners (there is a limitation contained in regulation 1.20J that provides a maximum of two sponsorships for any Australian). The provision contains a waiver power – if there are compelling circumstances affecting the sponsor then the limitation can be waived.
The sponsor (Aaron) and his wife (Nelly) had lodged their partner visa application and were shocked to receive a refusal notice shortly after. The case officer had refused their partner visa on two grounds : (1) there was insufficient evidence to show they were in a genuine married relationship and (2) the sponsor was barred from sponsoring further partners as he has already had two sponsorships approved previously. Aaron and Nelly came to PAX Migration for advice on what to do. They were understandably distraught.
We went through their relationship history in detail in our initial consultation. We learned about how they met, each of their families, how they live today, and where their relationship is headed. We did some research to determine what the legal options were. In short, the task at hand was to (1) demonstrate they were a genuine married couple and (2) demonstrate that there was sufficient compelling circumstances to justify a waiver of the sponsorship limitation.
First things first – we lodged the appeal of the visa refusal at the AAT – this is a very important step as missing the 21 day deadline is fatal to any prospects of appealing the decision.
We spent the next few months gathering our arsenal of evidence – of the genuine relationship as well as, most importantly, compelling circumstances affecting Aaron. Through spending time talking with the applicant and sponsor, we determined what the best arguments were and went about building out the evidence. The sponsor would suffer great hardship if the visa was not granted. He would have to move away from Australia. He has three children – the youngest of which is under ten years old and dependent on him as well as his ex wife. If the sponsor had to leave Australia, the sponsor’s relationship with his children would become non existent – he would suffer great mental health stress. We ordered an expert medical opinion from a clinical psychologist. We sourced historical evidence of mental health stress suffered by the sponsor. We obtained statutory declarations from family attesting to the compelling circumstances of the case. We drew the Tribunal’s attention to the history of the sponsor’s sponsorship – how he had been abandoned by his previous partner- how he is careful with who he enters relationships with but had suffered misfortune in prior relationships –we demonstrated the bona fides of those previous relationships and argued that he has not sought to exploit Australia’s migration laws. We cited policy published by the Department of Home Affairs consistent with these arguments indicating the visa should be granted on those grounds. We cited case law – namely Babicci v Minister for Immigration & Multicultural & Indigenous Affairs  FCAFC 77 (19 May 2005), where the court, endorsing the view of Moore J in the court below, stated: ‘But on any view of the meaning of that word the circumstances must be so powerful that they lead the decision-maker to make a positive finding that the prohibition contained in Regulation 1.20J (1) should be waived’ and, having presented circumstances that clearly are so powerful, the Tribunal should remit the application.
A few months after lodging our written submissions we received an invitation to attend a hearing. We prepared the applicant and the sponsor for questions that the Tribunal will be likely to ask of them. We gathered witnesses to be called if necessary. On the day of the hearing, the Tribunal member proceeded to conduct an interview of the sponsor and applicant separately. But as a result of the excellent written submissions lodged, he did not feel the need to obtain testimony from witnesses and actually proceeded to provide a favourable oral judgement! The applicant and sponsor walked in that day feeling nervous about what the future might be, they walked out feeling relieved and excited about their future in Australia.
They are now living their lives as a happy family in Adelaide, South Australia, and we are very proud to have played our part in keeping the family together in Australia.