Bobadilla (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Partner), made by the applicant, who claimed to be the spouse of an Australian citizen. The dispute arose when the Department of Home Affairs refused the visa application after the applicant failed to provide further information requested by the Department. The applicant subsequently lodged an application for review with the Tribunal, which was heard by Member Margie Bourke.

The primary legal issue before the Tribunal was whether the applicant and the sponsor were in a married relationship that satisfied the criteria under clauses 820.211(2)(a) and 820.221 of Schedule 2 to the Migration Regulations 1994. This required the Tribunal to consider whether the parties were validly married, whether there was a mutual commitment to a shared life as a married couple to the exclusion of all others, whether the relationship was genuine and continuing, and whether they lived together or not separately and apart on a permanent basis, as defined by section 5F of the Migration Act 1958. The Tribunal was also required to have regard to all circumstances of the relationship, including financial, household, social aspects, and the nature of their commitment to each other, as outlined in regulation 1.15A(3).

The Tribunal found that the parties were validly married in the Philippines on 9 July 2014, satisfying the requirement of section 5F(2)(a). The Tribunal noted that the Department had requested further information from the applicant, which was not provided, leading to the refusal. However, the Tribunal also considered the extensive documentation, declarations, and submissions provided to it, which included evidence of the parties' marriage, the sponsor's divorce from previous spouses, the applicant's deceased first husband, the existence of a child who is an Australian citizen by descent, and good relationships with the sponsor's adult children from previous marriages. The Tribunal concluded that, given the evidence before it, the appropriate course was to remit the application to the Minister for reconsideration.

The Tribunal remitted the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant met the criteria under clauses 820.211(2) and 820.221 of Schedule 2 to the Regulations.