Australian Immigration Article

The Background: A Story of Love, Loss, and a New Beginning

Our client, an Australian citizen, was in a committed and exclusive relationship with his partner from the Philippines. His greatest wish was to build a life with her in Australia. However, his migration history presented a major complication.

He had sponsored two partners in the past:

1. His first partner, also from the Philippines, was granted a Prospective Marriage visa. Unfortunately, after the visa was granted, their relationship came to an end before they could marry.

2. His second partner, from the Philippines as well, initially came to Australia on a visitor visa. Their relationship flourished, and he sponsored her for an onshore partner visa (subclass 820), which was granted. They built a life together and had a child. Tragically, his partner was diagnosed with cancer and passed away in 2019, leaving him a widower and a single father.

Even after his wife’s passing, our client remained close to her family and friends. It was through this network that he reconnected with a friend of a friend of his late wife. A genuine connection sparked, their relationship grew, and they decided they wanted to spend their lives together in Australia.

This led to the critical question: After sponsoring twice, could he legally sponsor a third partner?

(For our client, this question wasn’t just a legal query; it was about the possibility of a new beginning with the person he loved.)

Unpacking the Legal Hurdle: Understanding Regulation 1.20J

The answer to our client’s question lies in a specific part of the Migration Regulations known as Regulation 1.20J. This regulation exists to prevent the misuse of the partner visa program.

In simple terms, Regulation 1.20J sets out these key limitations:

• Two Sponsorship Limit: A person can sponsor a maximum of two partners in their lifetime (Reg. 1.20J(1)(a)).

• Five-Year Gap: A person who has previously sponsored a partner cannot sponsor another partner until at least five years have passed since the first visa application was lodged (Reg. 1.20J(1)(b)).

• Sponsored Person Limitation: A person who was granted a partner visa themselves cannot sponsor a new partner until at least five years have passed since their own visa application was made (Reg. 1.20J(1)(c)).

Our client’s situation fell directly under the first point. He had already used his two lifetime sponsorships. On the face of it, the law said he could not sponsor his new partner.

(The client’s history ran into the firm letter of the law, specifically the sponsorship limitations outlined in Regulation 1.20J.)

The Path to a Solution: The “Compelling Circumstances” Waiver

Fortunately, the law recognises that life is not always black and white. Regulation 1.20J(2) provides a pathway for the Department of Home Affairs to waive these limitations if there are ‘compelling circumstances’ affecting the sponsor.

So, what does the Department consider ‘compelling’? Policy guidelines provide some examples, which include:

• The applicant and sponsor have a dependent child together.

• The death of the previous partner.

• The previous partner abandoned the sponsor, leaving them with dependent children to care for.

• The new relationship is longstanding.

These are just examples, not an exhaustive list. When assessing a waiver request, the Department considers the sponsor’s entire situation and the hardship they would face if they were unable to sponsor their new partner and felt compelled to leave Australia to be with them.

In our client’s case, we identified two powerful arguments for a waiver:

1. The Death of His Partner: His second wife, whom he had sponsored, had tragically passed away. This is one of the specific examples listed in policy as a compelling circumstance. He was not a serial sponsor ending relationships; he was a widower.

2. Care and Support for His Dependent Child: The client and his late wife had a child together. This child, who was diagnosed with autism, was solely dependent on our client for all care and support. The need to maintain a stable and supportive home environment for his child in Australia was a significant factor.

It was clear that his situation was not one of abuse of the migration program but a series of deeply unfortunate life events. We prepared a detailed legal submission that clearly articulated these compelling circumstances, supported by extensive evidence.

The result was a success. The Department accepted our arguments, exercised their discretion to waive the sponsorship limitation, and the partner visa application was ultimately approved.

(A successful outcome: The relief and joy of a partner visa approval, allowing a couple to finally begin their life together in Australia.)

Key Lessons from This Sponsorship Limitation Waiver Journey

1. Life is Unpredictable, and Migration Law Can Account for It: While the rules may seem rigid, provisions like the ‘compelling circumstances’ waiver exist because the law acknowledges that tragic and unforeseen situations occur. Your story matters.

2. Discretionary Waivers Require a Carefully Prepared Case: A waiver is not automatic. The decision-maker has the discretion to approve or refuse it. Simply stating that a previous partner passed away is not enough. You must build a persuasive argument, supported by evidence, that addresses the legal criteria and tells your story in a compelling way.

3. Full Disclosure is Non-Negotiable: When dealing with a complex history, it is vital to be upfront and honest about your past sponsorships. A well-prepared application addresses these issues head-on and explains the circumstances, rather than hoping they go unnoticed.

This case is a powerful reminder that even in the most complex migration matters, a way forward can often be found with the right approach.

Your relationship history should not be an automatic barrier to your future happiness. If your story involves complex sponsorship matters, navigating the path requires careful handling and a deep understanding of the law.

Our principal lawyer, Jay Son, brings over 8 years of dedicated experience in Australian immigration law to every case. He has assisted many clients in situations similar to this, presenting their circumstances to the Department to achieve positive outcomes.

If you need legal support with a complex sponsorship history, reach out to Jay directly by emailing him at jays@flowmigrationlaw.com.au to book a consultation and find out how we can help you put your best case forward.

(A carefully prepared case makes all the difference. Our team is ready to help you navigate your complex migration journey.)