Allamby (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant sought review of a decision to refuse the visa. The core of the dispute revolved around whether the applicant and the sponsor, an Australian citizen, were in a genuine and continuing spouse relationship at the time of the visa application and at the time of the decision.

The Tribunal was required to determine whether the parties met the criteria for a spouse relationship as defined by section 5F of the Migration Act 1958 (Cth) and regulation 1.15A of the Migration Regulations 1994 (Cth). Specifically, the Tribunal had to consider if the parties were validly married, and if so, whether they demonstrated a mutual commitment to a shared life as a married couple to the exclusion of all others, that the relationship was genuine and continuing, and that they lived together or did not live separately and apart on a permanent basis. The Tribunal also had to consider all the circumstances of the relationship, including financial, household, social aspects, and their commitment to each other.

The Tribunal reasoned that while the initial refusal was based on a lack of evidence of a de facto relationship, significant new evidence had been presented. Crucially, the applicant and sponsor had married after the delegate's decision and had a child together. The Tribunal accepted the marriage certificate as proof of a valid marriage for the purposes of the Act. Given the extensive evidence submitted, including joint financial documents, evidence of cohabitation, photographs, statutory declarations, and communications, the Tribunal was satisfied that the parties were in a genuine relationship and constituted a family unit, thereby meeting the requirements of section 5F(2)(b)-(d) and regulation 1.15A(3).

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria under clauses 820.211(2)(a) and 820.221 of Schedule 2 to the Regulations.