Al Hassan (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant, of Saudi Arabian descent, arrived in Australia on a student visa and met his sponsor, who is an Australian citizen, while studying. They married in March 2014 and have two young children. The sponsorship was initially withdrawn by the sponsor following an argument and financial stress, but the parties claim to have reconciled. The applicant has since been working overseas to support his family.

The primary legal issue before the Tribunal was whether the applicant and his sponsor were in a genuine and continuing spousal relationship as defined by section 5F of the Migration Act 1958 (Cth). This required the Tribunal to assess whether they were married under a valid marriage, had a mutual commitment to a shared life to the exclusion of others, and lived together or not separately and apart on a permanent basis, considering all circumstances of the relationship.

The Tribunal reasoned that while the parties were validly married and had two children, the applicant's current employment overseas and the initial withdrawal of sponsorship raised questions about the genuineness and continuing nature of their relationship. The Tribunal acknowledged the evidence of reconciliation, the applicant's financial support of the family from abroad, and his attendance at the hearing on unpaid leave, indicating a deep level of commitment. However, it also noted that compliance with criteria depends on the Tribunal's satisfaction, not objective fact, and that it was not required to uncritically accept all assertions.

Given the complexities and the need for further assessment of the remaining criteria for the visa, the Tribunal remitted the application for reconsideration by the Minister. The Tribunal directed that the applicant met specific criteria related to the visa subclass, but the overall assessment of the spousal relationship required further consideration.