1703303 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa by the applicant, who arrived in Australia on a Prospective Marriage visa and married the sponsor in August 2015. The applicant's three children from a previous relationship were dependants on the application but had been in the care of the Department of Child Protection for most of their time in Australia. The Tribunal was required to determine whether the applicant and the sponsor were in a genuine and continuing spousal relationship at the time of the visa application and at the time of the decision.

The legal issues before the Tribunal were whether the applicant met the criteria for a Partner (Temporary) (Class UK) visa, specifically whether she was the spouse of the sponsor, an Australian citizen. This required assessing if the parties were validly married and if they had a mutual commitment to a shared life as husband and wife, lived together, and if their relationship was genuine and continuing, as defined by section 5F of the Migration Act 1958 and Regulation 1.15A of the Migration Regulations 1994. The Tribunal also had to consider adverse information provided to the Department and the sponsor's failure to attend the hearing.

The Tribunal reasoned that while the parties were validly married, the evidence did not establish a genuine and continuing spousal relationship. The applicant's statutory declaration indicated a lack of communication with the sponsor and a limited understanding of the application process, stating "He does all the paperwork, I just follow him. I don’t know what’s going on." Furthermore, the sponsor's failure to attend the hearing, despite being invited to give evidence, raised significant credibility issues. The Tribunal considered the financial and social aspects of the relationship, the nature of the household, and the parties' commitment to each other, finding insufficient evidence to satisfy the requirements of a genuine and continuing spousal relationship.

Consequently, the Tribunal affirmed the decision not to grant the Partner (Temporary) (Class UK) visa to the applicant. As the primary applicant did not satisfy the visa criteria, the decision to refuse visas for any secondary applicants was also affirmed.