1816689 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant sought review of a decision by the Department of Home Affairs. The core of the dispute revolved around the applicant's spousal relationship with the sponsor, which the Department had indicated had ended, leading to the withdrawal of sponsorship.

The Tribunal was required to determine whether, at the time of its decision, the applicant continued to be the spouse or de facto partner of the sponsor, or if alternative criteria for the visa were met. This involved assessing the genuineness and long-term nature of the spousal partnership, particularly in light of evidence suggesting the relationship had ended and then resumed. The Tribunal also considered whether the applicant could satisfy any exceptions to the general relationship requirements, such as those relating to the death of the sponsor or family violence.

The Tribunal reasoned that while the sponsor's birth certificate established her Australian citizenship, the evidence regarding the current state of the relationship required further consideration. The Tribunal noted that statutory declarations from both the applicant and the sponsor indicated a reconciliation. However, the Tribunal had also issued a letter under s.359(2) and s.359A of the Migration Act 1958, inviting comment on information suggesting the relationship had ended and sponsorship withdrawn, and also on potential exceptions to the relationship criteria. The applicant's representative responded, explaining the applicant's overseas travel due to a father's illness and death, and subsequent difficulties in returning to Australia due to visa condition breaches. The Tribunal ultimately concluded that the application should be remitted for reconsideration, directing that the applicant met the criteria under cl.820.221(1)(a) of Schedule 2 to the Migration Regulations 1994, which pertains to being the spouse or de facto partner of an Australian citizen.