Brar (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant claimed to be the spouse of an Australian permanent resident. The central dispute revolved around whether the parties were in a genuine and continuing married relationship at the time of the visa application and at the time of the decision, as required by the Migration Regulations 1994. The decision was made by Cheryl Cartwright, a Member of the Tribunal.

The legal issues before the Tribunal were whether the parties were validly married and, if so, whether they met the other requirements for a spouse relationship under section 5F of the Migration Act 1958 and regulation 1.15A of the Migration Regulations 1994. Specifically, the Tribunal had to determine if there was a mutual commitment to a shared life as a married couple to the exclusion of all others, if the relationship was genuine and continuing, and if the couple lived together or not separately and apart on a permanent basis, considering all circumstances of the relationship including financial, social, household, and commitment aspects.

The Tribunal reasoned that evidence of events subsequent to the visa application could be relevant if it logically tended to show the existence or non-existence of facts relevant to the issue at the time of application. In this case, the Tribunal considered evidence of events after the application date, including the birth of two children and the parties' living arrangements, to inform its findings about the criteria at the time of the decision. The Tribunal found that the parties were validly married, as evidenced by a marriage certificate. However, the Tribunal concluded that the matter should be remitted for reconsideration to allow for a full assessment of the remaining criteria for the Subclass 820 visa.