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More Trouble: The Limit on Sponsoring More Than 2 Partners
In this day and age, serial monogamy is not all that unusual, is it?
In fact, one need go no further than “the Donald”, the famous, or infamous, Donald Trump, however you would prefer it, to find an example of a person who is on his third marriage (and one may also note that two of these wives, the first, Ivana, and the third, Melania, were both born outside the United States).
And of course, one need go no further than King Henry VIII to find another example of a well-known person who was inclined toward serial monogamy (let’s not forget that HRH played a rather significant role in all of this, by divorcing two wives and beheading two!).
So one may wonder: suppose you have a client who has previously sponsored two spouses on partner visas, what are the obstacles to a third sponsorship?
Well, a recent case that came before the Federal Circuit Court, Nagaki v Minister for Immigration & Anor (2016) FCCA 1070 (6 May 2016) illustrates that “it ain’t going to be easy”.
As we know, Regulation 1.20J imposes a “lifetime quota” of 2 sponsorships of applicant’s for partner visas on the basis of marriage, de facto partnership or prospective marriage. An exception to this limit is provided under Regulation 1.20J(2), and is available in circumstances where the Minister is satisfied that “there are compelling circumstances affecting the sponsor”.
What does Departmental policy tell us about when this “waiver” provision might be applied?
Policy (PAM3) presently states that “every aspect of the sponsor’s circumstances is relevant”, and that while no definitive list can be given, the following factors may be viewed to be particularly important:
- The nature of the hardship/detriment that would be suffered by the sponsor if the sponsorship were not to be approved;
- 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.
Policy also states that compelling circumstances may be found to exist where:
- The applicant and the sponsor have a dependent child who is dependent on both of them;
- The previous partner has died;
- The previous partner has abandoned the sponsor and there are children who are dependent on the sponsor who require care and support;
- The new relationship is longstanding.
Policy also notes that the underlying purpose of the “lifetime sponsorship limitation” is to “prevent abuse of the partner/fiancé migration provisions”, and that this purpose should be “kept in mind” when decisions are made concerning whether the discretion to grant a waiver should be exercised.
So policy might seem to suggest that where it is evident that a relationship between partners is genuine and has been in existence for a few years, that a waiver should be within reach, right?
Let’s take a look at how the issues played out in Nagaki.
I don’t want to ruin the suspense, so here’s a “spoiler alert”, skip over the next sentence if you want:
Things did not turn out happily!!!
So what claims were advanced by the sponsor?
First, the sponsor brought forward evidence that he and the applicant had been in a longstanding relationship, one that had been in existence at the time of the Tribunal’s decision for more than 3 years. Not good enough in the eyes of the Tribunal: it found that the mere fact of a longstanding relationship was not, by itself, sufficient reason to grant a waiver, and that regard would need to be had to other relevant circumstances.
Second,, the sponsor claimed that his prior relationships were genuine, and they had broken down irretrievably. Not compelling, in the view of the tribunal.
Third, the sponsor claimed that he would suffer financial hardship if the application were to be refused, because his partner would be forced to return to Japan and he would follow her there.
Not compelling, according to the Tribunal: it found that even though the sponsor might not be able to find employment in his chosen field if he had to relocate to Japan, and that his remuneration might not be as high as he was receiving in Australia, he would nonetheless not suffer undue financial hardship.
Furthermore, with respect to financial issues, the Tribunal found that the sponsor’s claim that he needed to continue to earn a relatively good income to save for his retirement was not a compelling circumstance.
What about the sponsor’s desire to maintain his relationships with his children? The difficulty here was that the sponsor’s children were not dependent and in need of care: his elder child, a son, was 21 years old and had just completed a clerkship at a law firm in Singapore, and his other child, a daughter, was 17 years old and about to commence her own first-year studies at university. Also, there was evidence that the sponsor had previously relocated and had managed to continue his relationship with his children.
So, while characterized as a “compassionate” circumstance by the Tribunal, it was not one that was accepted by the Tribunal to be “compelling” to justify approval of the sponsorship?
What about evidence that refusal of approval of the sponsorship, and consequent refusal of the visa, was having an adverse impact on the sponsor’s mental health, to the point where he claimed that refusal of the partner visa application could cause him to commit suicide?
Again, not compelling in the opinion of the Tribunal. Even though it was apparently accepted by the Tribunal that the sponsor was suffering significant distress due to the Department’s refusal of his partner’s visa application, there was no medical evidence that the sponsor had experienced an underlying mental health issue prior to the Department’s decision to refuse the application.
So, while the Tribunal accepted that “immigration issues cause stress and anxiety” (we’d all agree about that one!!!) and that this was a compassionate circumstance, it was not a compelling reason to grant a waiver.
So, the ultimate conclusion of the Tribunal was that the circumstances stated by the sponsor were not, either taken separately or collectively, sufficient to be compelling.
The Federal Circuit Court concluded that the Tribunal had not been guilty of any jurisdictional error in arriving at its decision in the case.
So the judicial review application “went down in flames”.
So, the case shows that it can be really really (really!) hard to get a waiver of the “2 sponsorship limit”.
Should it be? In this day and age of Facebook and countless other apps and social media platforms through which people from all corners of the planet meet each other and form relationships, where people are living longer and divorce and re-marriage are totally commonplace, does this limitation really make any sense, at all?
Should people who genuinely enter “third” relationships (third marriages?) really be prevented from another sponsorship, and forced overseas if they want to live with their partner?
Is Regulation 1.20J an artifact of a bygone era, and should there have been more flexibility in its application in this case?
Your turn to comment!
Concordia Pacific , Email: This email address is being protected from spambots. You need JavaScript enabled to view it.
Comments
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Wednesday, 31 May 2017What's the chance of sponsoring a third partner and our child?
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Wednesday, 27 June 2018
My friend was married 5 years an had a child that was 3 years old at the time he applied to migrate his wife as his child got Australian citizenship by decent from him an it was automatyically approved as a 3rd sponsorship
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Friday, 07 July 2017
What is the definition of Compelling Circumstances?
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Friday, 17 November 2017
A lifetime quota of 2 sponsorships is a joke. It should be just a 10-year quota. People make mistakes, especially when they're young and naive. I'm a woman in mid-40's, have sponsored two people before (when I was young and naive). The first one betrayed me (had another woman behind my back), the second one just turned cold and careless with no effort to maintain a happy, meaningful relationship so I left him. I am now in my mid 40's (no longer "young and naive"), in a genuinely loving relationship with a European and wish to bring him here to Australia as I do not wish to live anywhere outside Australia. Having to separate with him gives me (literally!) physical and emotional pain. Furthermore I have to provide "almost impossible" evidence including "why" I don't want to live outside Australia because the main reason is of course, economically it is better for me. But the article above mentions that financial reason is not a compelling circumstance. Any advice would be greatly appreciated.
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Monday, 20 November 2017
For those seeking further clarification or advice concerning issues that are discussed in these articles, please contact help@migrationalliance.com.au or concordialaw@optusnet.com.au
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Wednesday, 27 June 2018
Honestly just go to New Zealand, if you are living an working there you can sponsor there if your Australian, once she gets her NZ passport just walk back in simple as that!
I sponsored once in 1991 (26 years ago) and again in 2006 (12 years ago). I have children and I am ex-military yet they would rather see me suffer an go overseas away from my elderly parents who i care for and my children, this just shows what a truly backward, stupid system we have! If you're born here an forced to leave your country of birth while that take in immigrants whats that tell you? I do not feel like I am Australian! -
Friday, 21 June 2019
I sponsored someone on prospective marriage visa.we got married lasted 9 months.i withdrew my sponsoship because just wanted get here which was unawsre of at the timeyet she was able to get permanent residency when says you cant.i then sponsor another for 8 years and now i wish to sponsor another from 3rd world country but cant i have go live there in her shitty existence.i think new zealand sounds good..very un australian
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Friday, 05 February 2021
First of all you have to understand that the legislation bringing in the 'lifetime' limitation of 2 sponsorships under S1.20J of the Migration Regulations 1994 was not backdated and means an application for a visa referred to in paragraph (1) (a) or (b) made during the period from 1 November 1996 so anything prior to 1 November 1996 is not counted as one of the 2 sponsorships. Secondly "Despite subregulation (1), the Minister may approve the sponsorship of an applicant for a visa if the Minister is satisfied that there are compelling circumstances affecting the sponsor." This is often referred to as compassionate grounds in the commentaries and you have to show how the sponsor is affected. What hardship or detriment they would suffer if the application was not granted and to what degree. For example if the sponsor had severe health problems which would make it unlikely he could leave Australia (and its health system) to live in a third world country and he had been in a long standing relationship with his partner there would be considerable detriment to the sponsor if her visa was not granted. Having dependent children who would have to be abandoned is another compelling ground. Finally although it is not stated, think very carefully how attractive your partner will be to Australia because there are health and now character grounds to meet. Is she educated, healthy, english speaking, employable.
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Sunday, 30 October 2022
Huang (Migration) [2018] AATA 263
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.
1-He was married to the first partner from 1958 until they divorced in 2005.
2- After this, the second partner was sponsored for a visa and the pair were married in 2008 and divorced in 2012.
3- 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.
4- The fourth partner was then sponsored and that visa application was the one before the Tribunal.
Immigration blog
To be fair, I think the government should issue a longer provisional duration (4 years) for third and subsequent visas. So in the event that the relationship breaks down during the provisional years, the visa holder will risk visa cancellation. Enforce a yearly review reporting requirement, to make sure that the relationship is genuine. Yes, it will be more work for the department, but the evidence monitoring does not have to be rigid during the provisional years (providing financial documents that show the visa holder is supporting or supported in the household's financial obligations, maintaining same residence, household bills).