Australian Immigration Daily News

What is the correct interpretation of Regulation 1.20J, which limits the number of times that a person may sponsor another person for a prospective marriage, partner or “extended eligibility” visa?

Suppose, for example, that someone has sponsored two previous spouses to come to Australia prior to the effective date of Regulation 1.20J (1 November 1996): do those previous sponsorships “count” against the limitation (stated in Regulation 1.20J (1)(a)) that a sponsor may have sponsored no more than 1 other person who has received a “relevant permission” to enter Australia?

Can you have sponsored 2 or more previous fiancés/partners/spouses so long as those persons were granted their “relevant permissions” before the effective date?

Two decisions of the Federal Circuit Court of Australia that have been handed down this month – Wu v Minister for Immigration  & Anor (2016) FCCA 290 (15 February 2016) and Jiang v Minister for Immigration & Anor (2016) FCCA 360 (25 February 2016) provide guidance about how to interpret the sponsorship limitation.

And in fact, these decisions may give some reassurance to RMAs who may find at times that it is a struggle to figure out what the Migration Regulations mean: sometimes, the Regulations mean exactly what they say, and there is “no getting round them”.

The situation in the Wu case was that a man who is an Australian citizen sought, in April 2013, to sponsor his third wife for a partner visa. He had previously sponsored two former wives for permanent residency: the first former wife had received her permanent residency in 1981, and the second in 1991.

Did these previous sponsorships preclude the third proposed sponsorship for his latest wife?

The man argued that they did not.  It was his contention that because the first two wives had been granted visas before Regulation 1.20J came into force in November 1996, they should not be counted against the limitation that no more than 1 previous sponsorship can be approved.

How did that argument go in the Court?  In a word, badly!

To provide some context, let’s take a quick look at the text of Regulation 1.20J.

Subclause 1.20J (1AA) provides that “This regulation applies in relation to an application for” prospective marriage, temporary and provisional partner, and extended eligibility visas.

Subclause 1.20J(1) says that the Minister may not grant approval of a person as the sponsor of a prospective spouse, partner or spouse of an applicant if more than 1 other person who has been sponsored by the sponsor has been granted a “relevant permission”.

And subregulation 1.20J(1A) states that the term “relevant permission” means “a visa” in relation to an application referred to in subregulation 1.20J(1AA) that was made between 1 November 1996 and 30 June 1997, and in relation to all applications made after 1 July 1997, the term means a permission, an entry permit, or a visa.

So, what did the Court decide in Wu? That the reference to“applications” in subregulation 1.20J (1AA) is a reference to the “current application” or, to the prospective marriage, partner, or extended eligibility application that is presently  being made.

The Court did not accept the sponsor’s  submission that the sponsorship limitation did not exclude sponsorships that had been made before the effective date of Regulation in 1.20J.  

In other words, in the Court’s view, what is relevant for the purposes of Regulation 1.20J is not when the previous sponsorships were approved, but when the current application for a prospective marriage, partner or extended eligibility visa has been made.

In the Wu case, since the application for the partner visa for the sponsor’s third wife had been made after the effective date of Regulation1.20J, then the Regulation applied.  The two previous sponsorships, which had been granted in 1981 and 1991, thus prevented the approval of a third sponsorship.  It did not matter that visas for the 2 previous wives had been granted before Regulation 1.20J came into effect.

The Court provided some historical context to support this interpretation.

Apparently (only those who are true “institutions" (! ) of the migration advice profession such as our colleague Christopher Levingston would know this firsthand!!!) when the sponsorship limitation first came into force in November 1996, it applied only in cases where the “relevant permission” was a “visa”. However, before September 1994, approvals for spouses etc to enter Australia had apparently been granted only in the form of “entry permits” (not “visas”).  Thus, when the Regulation was amended with effect from 1 July 1997, the scope of previous spousal  etc approvals covered by the sponsorship limitation was expanded to  also cover the entry permits that had been granted before September 1994. 

In short, before the Regulation was amended, the limitation on sponsorships did not include those sponsorships that had resulted in the grant of “entry permits” for a spouse or partner  etc– these were not “counted” against the “2 sponsorships per lifetime limit”!

So, in effect, before the amendment, a person could theoretically have previously sponsored an unlimited number of partners or spouses who had been granted “entry permits” before September 1994, and  the prior grant of more than one entry permit would not have precluded  a further sponsorship even with respect to a new application made after the effective date of 1.20J.

Therefore, for all prospective marriage, partner and extended eligibility applications that have been made since  1 July 1997, all forms of approval (“relevant permissions”) that have ever been granted through a partner or spousal partnership  - whether they be “entry permits” or “visas”  have “counted” against the sponsorship limitation.  (To be silly about it, not even 20 would have been too many to prevent yet another sponsorship/visa approval!)

The Federal Circuit Court’s decision in the Jiang case follows what was said in Wu. In Jiang, a man sought to sponsor his fifth  wife to come to Australia from China.  As two of those previous marriages had resulted in the grant of “relevant permissions” -  in this case, “visas” – to earlier wives, the further sponsorship that was proposed in Jiang was also disallowed. This was so, again, even though, as in Wu, the first "relevant permission" (visa) had been granted before the effective date of Regulation 1.20J.

So, what do these two recent decisions teach us: Clearly and unequivocally, all sponsorships that have resulted in the approval of a relevant permission – whether in the form of a visa or an entry permit – will be counted against the maximum “2-sponsorship” limitation, no matter when the “permissions” resulting from those sponsorships were granted. It does not matter whether the previous “permissions” were granted before or after the effective date of 120.J. All that matters is that the visa/sponsorship application has been made after 1 July 1997!

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