Decision: The Tribunal sets aside the decision under review and remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, in accordance with the order that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

• cl.309.213 (1) of Schedule 2 to the Regulations
• cl 309.222 (1) of Schedule 2 to the Regulations.

MIGRATION - Partner (Provisional) (Class UF) visa - Subclass 309 (Partner (Provisional)) - sponsorship limitation - compelling reasons - two divorces - two wives departed Australia - regular financial support to visa applicant - review applicant cares for elderly father - regular international trips to visit current wife - unsustainable financial burden - genuine and longstanding relationship - waiver exercised - decision under review remitted

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), rr 1.03, 1.20J; Schedule 2, cls 309.213, 309.222

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 July 2022 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) Subclass 309 visa under s 65 of the Migration Act 1958 (Cth) (the Act). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
2. The visa applicant applied for the visa on 14 May 2022 on the basis of her relationship with the sponsor and review applicant. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.222 in Schedule 2 of the regulation.
3. This was because the review applicant and sponsor, Mr Kerim, had previously sponsored two other people, and consequently the sponsorship is subject to the sponsorship limitation in reg 1.20J(1). The delegate found that they were not satisfied that the compelling circumstances submitted by the review applicant justified the waiver of the sponsorship limitation in accordance with reg. 1.20(J)(2).
4. The review applicant appeared before the Tribunal on 1 August 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and Mr Sammy Ozman. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and Kurdish and English languages.
5. The review applicant was represented in relation to the review. The representative attended the hearing.
6. On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
7. For the following reasons, the Tribunal has concluded that the decision under review is set aside, and the matter should be remitted for reconsideration.

1. The issue in the present case is whether the visa applicant is affected by the sponsorship limitations set out in paragraph 1.20J(1), and whether there should be a waiver of the sponsorship limitation. The ability to waive the sponsorship limitation is contained in cl. 1.20J(2). Two previous visa applicants, sponsored by the review applicant, have previously been granted Partner visas. Therefore, the sponsor is affected by the sponsorship limitation set out in paragraph 1.20J(1).

1. Clause 309.213 requires that the visa applicant is sponsored by the sponsor, where such person has turned 18; or where they have not, by the sponsor's parent or guardian who has turned 18 and is either an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in reg 1.03 of the Regulations).
2. The Tribunal finds that the visa applicant and sponsor married in Iraq on 24 December 2020 and that the sponsor is an Australian citizen who is over 18 years of age. Accordingly, the applicant meets the requirements of cl.309.213(1).

1. It is not disputed by the review applicant and sponsor that he has previously sponsored two other people for partner visas. As outlined in the delegate's decision record, the review applicant originally sponsored Ms Beriwan Ali Haji for a Partner (subclass 100) visa that was granted on 30 September 1993. The review applicant subsequently sponsored Ms Guldane Osman Kerim for a Partner (subclass 309) visa that was granted on 13 May 2004. Both Ms Haji and Ms Kerim were granted visas based on the approved sponsorship of the review applicant. This evidence means that the visa applicant does not meet, prima facie, Regulation 1.20J(1).

1. Reg 1.20J(2) provides that, despite the provisions of Regulation 1.20J(1), a Minister may approve the sponsor of an application for a visa if satisfied there are compelling circumstances affecting the sponsor.
2. The expression 'compelling reasons' is not defined in the Act or Regulations. The ordinary dictionary meaning is 'brought about by moral necessity'.
3. Departmental policy provides the following examples of compelling circumstances affecting the interests of the sponsor:
   • the previous partner has died;
   • the previous partner has abandoned the sponsor, and there are children dependent on the sponsor requiring care and support;
   • the new relationship is long-standing; or
   • there are dependent children of the new relationship.
4. The policy also identifies the following as relevant when considering waiving the bar on repeat sponsorship:
   • the nature of the hardship/detriment that would be suffered (by the sponsor) if the sponsorship were not approved; and
   • the extent and importance of the ties the sponsor has to Australia, and the consequent hardship/detriment that would be suffered if the sponsorship were not approved and the sponsor were to feel compelled to leave Australia to maintain their relationship with the applicant.
5. These examples are not exhaustive. In forming an opinion about these matters, regard must be had to all the circumstances of each case, taking into account that the purpose of the sponsorship limitation is to prevent abuse of the partner migration provisions.
6. The visa applicant is 41 years of age and an Iraqi national. She has been married once previously. The review applicant is 55 years of age at the time of decision, and now been an Australian citizen for well over 3 decades.
7. The review applicant explained to the Tribunal that he had arrived in Australia in 1989 and was granted Australian citizenship in 1993. He discussed his first marriage to Ms Beriwan Ali Haji and explained they had two children together. He discussed that his first wife did not enjoy life in Australia being separated from her own family in Iraq. This impacted their relationship adversely. He stated that she had departed Australia with their two children in 1996 and had never returned to Australia.
8. The review applicant's second spousal relationship had faced similar issues. His second wife Ms Guldane Osman Kerim had been granted a Partner (subclass 309) visa on 13 May 2004. She did not enjoy life in Australia and felt isolated from her family. The marriage ended and she returned to Iraq. There were no children of this relationship. Ms Kerim had never returned to Australia after departing in 2008.
9. The review applicant provided divorce certificates for the two previous marriages, with the divorces being executed in May 2006 and November 2008 respectively. The Tribunal accepts the documentation as genuine and accepts the review applicant's submissions that his relationships with each of his previous spouses ended at this time.
10. The review applicant discussed the loneliness he had felt in the many years after his second marriage ended in Australia. He stated his family wanted hi to be happy, and his late mother had introduced him to his current wife in 2020 as she was worried about him. The review applicant explained that he met his wife in person in Iraq in December 2020, both committing to her and marrying her that month. The review applicant explained that he returned to Australia in March 2021 and subsequently returned to Kurdistan to be with the visa applicant between January and February 2022, and then in July 2022 when he and the visa applicant travelled to Saudi Arabia. The review applicant explained that he and the visa applicant had travelled to Saudi Arabia twice, visiting Mecca and Medina. The evidence suggests the review applicant has spent a significant time and expense travelling offshore to spend time with the visa applicant. He and the visa applicant explained in their oral evidence that they communicate everyday either over the telephone or through WhatsApp. Evidence was provided of this communication. The evidence suggests that the review applicant has also provided regular financial support to the visa applicant over the past 4 years, sending around AUD$200 each month. Evidence was provided demonstrating this support.
11. The Tribunal found both the review applicant and visa applicant to be genuine, honest and spontaneous in their oral testimony at hearing when discussing the history of their relationship, as well as their love and regard for each other.
12. The review applicant explained how he helps provide care and support to his very elderly 85-year old father (with whom he currently resides), and this is impacted by his travels to the Middle East to be with his wife, the visa applicant. Apart from the financial strain of these trips, the caring responsibilities pass on to his other siblings whilst he is away.
13. Reg. 1.20J(2) allows a sponsorship that would otherwise fail to meet the requirements of reg. 1.20J(1) to be approved if there are compelling circumstances affecting the interests of the sponsor.
14. The Tribunal has taken into account policy, and notes there is no claim or evidence before the Tribunal that the review applicant's previous partners have died, nor are there dependent children of the new relationship. Whilst the review applicant has some relationship with the children from his first wife, the Tribunal notes that they are now adults in Iraq and there is no suggestion they are dependent on the review applicant and sponsor for care and support.
15. The review applicant has sought approval of his sponsorship of the visa applicant pursuant to reg. 1.20J(2) because of a range of compelling circumstances affecting himself as sponsor.
16. In support of the waiver being exercised by the Tribunal, the review applicant has submitted his genuine and longstanding relationship with his wife, the visa applicant. The Tribunal notes the evidence before it and accepts the parties maintain frequent and consistent communication; the review applicant provides regular financial support to the visa applicant; their relationship is well recognised by family and friends; and the review applicant clearly would appear to make every effort to travel to the Middle East - at considerable cost - to be with his wife. The Tribunal accepts that the inability of the review applicant to successfully sponsor his wife to Australia has caused him considerable stress, anxiety and unhappiness. The Tribunal found the review applicant and visa applicant to be genuine and reliable in their oral testimony at its hearing.
17. The Tribunal accepts, on the evidence before it (noting it is only considering the issue of sponsorship), that the review applicant and visa applicant have been in a genuine and longstanding relationship since December 2020, and this is a compelling circumstance that affects the interests of the sponsor.
18. The review applicant has also submitted that his two previous sponsorships were made in good faith. He submits that the relationships ended due to the difficulties his previous two wives faced at adjusting to life in Australia, and they made the unilateral decision to leave the review applicant. He points out that neither returned to Australia after leaving many years ago, and that to all intents and purposes he should be considered an "innocent sponsor".
19. The Tribunal is satisfied on the evidence before it that the review applicant did not "misuse" the Partner migration programme, rather he was in two separate spousal relationships that simply did not work out. The review applicant's first marriage occurred over 30 years ago. His second marriage ended some 17 years ago. Both of the individuals he sponsored departed Australia at this time and never returned. The evidence strongly suggests that there was never any intention of migration fraud, or attempting to mislead or deceive the Department, rather these spousal relationships simply did not work. The Tribunal accepts that the review applicant's good faith in his prior sponsorships of many years' past are further compelling reasons for the waiver to exercised.
20. The Tribunal has also taken into account the review applicant's claims that he will face genuine hardship if his sponsorship is refused. The review applicant discussed, as did the visa applicant, how the review applicant is a primary caregiver for his elderly father who is in a very poor medical condition. It was submitted that the review applicant will face significant hardship in attempting to maintain a long-distance relationship with the visa applicant, whilst he remains in Australia to care for his father. It is further submitted that to continue the existing schedule of international travel, where the review applicant travels offshore to spend time with his wife, is creating a significant financial burden that is ultimately unsustainable. The review applicant also submits that it would be difficult for him to maintain a balance between his care responsibilities in Australia with his father, and his responsibilities as a husband offshore with the visa applicant.
21. The Tribunal has some sympathy for these submissions.
22. The Tribunal accepts the submission that the review applicant faces a very real and ongoing hardship if his sponsorship is refused. The adverse impact upon both his spousal relationship, and his caring responsibilities with his father (acknowledging that his family in Australia can also assist with this role) is significant, as is the ongoing financial impost.
23. It would appear to the Tribunal to be a harsh and unjust impediment in these circumstances to preclude an Australian citizen of some 32 years the ability to sponsor a further spouse, and to leave him with the unenviable choice of either travelling offshore at significant cost to the Middle East to be with his wife (and leaving his elderly and infirm father) or remaining in Australia separated from his spouse.
24. Considering all the evidence before it, the Tribunal is satisfied that, at the time of its decision, there are compelling circumstances that affect the interests of the sponsor such that the sponsor's sponsorship of the applicant ought to be approved, despite him exceeding the limit of sponsorships set out in Regulation 1.20J(1).
25. Consequently, based on the evidence the Tribunal finds that the requirements of cl. 309.213 and cl. 309.222 are met. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.

1. The Tribunal sets aside the decision under review and remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, in accordance with the order that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
   • cl.309.213 (1) of Schedule 2 to the Regulations
   • cl 309.222 (1) of Schedule 2 to the Regulations.