1902818 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Partner). The applicant and sponsor married in August 2016. In May 2018, the applicant advised the Department of Immigration that the parties had separated due to family violence, providing an interim intervention order and a psychologist's report detailing the impact of this violence. The decision under review was made by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant and sponsor were in a genuine and continuing married relationship at the time of the visa application on 15 August 2017, as required by clauses 820.211(2)(a) and 820.221 of Schedule 2 to the Migration Regulations 1994. This required consideration of the definition of "spouse" under section 5F of the Migration Act 1958, which necessitates a valid marriage, mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and cohabitation. The Tribunal was required to have regard to all circumstances of the relationship, including financial, household, social aspects, and the nature of the commitment to each other, as outlined in regulation 1.15A(3).

The Tribunal considered evidence of events subsequent to the visa application, including the separation due to family violence, the interim intervention order, and the psychologist's report, as such evidence could logically demonstrate the existence or non-existence of facts relevant to the issue at the time of application. The Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal remitted the application for a Partner (Temporary) (Class UK) visa with the direction that the applicant meets the criteria for a Subclass 820 (Partner) visa under cl 820.211(2) and cl 820.221(3) of Schedule 2 to the Regulations.