Cabsari (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, subclass 820. The applicant sought to establish that she was the de facto partner of the sponsor at the time of application, and subsequently, a spouse at the time of the decision. A key issue was the sponsor's marital status at the time of the parties' religious ceremony, as he was legally married to another woman at that point. The Tribunal was required to consider evidence of the parties' relationship, including financial, household, and social aspects, as well as the nature of their commitment, in light of the definitions of "de facto partner" and "spouse" under the *Migration Act 1958* (Cth).

The Tribunal was tasked with determining whether the applicant and the sponsor were de facto partners at the time of the visa application on 1 September 2014, and whether they were spouses at the time of the decision. This involved assessing whether the parties met the criteria for a de facto relationship as defined in section 5CB of the Act, which requires a mutual commitment to a shared life to the exclusion of all others, a genuine and continuing relationship, cohabitation or not living separately and apart on a permanent basis, and not being related by family. The Tribunal also had to consider the criteria for a spousal relationship under section 5F of the Act, which requires a valid marriage, a mutual commitment to a shared life as husband and wife to the exclusion of all others, a genuine and continuing relationship, and cohabitation or not living separately and apart on a permanent basis. The Tribunal noted that evidence of events subsequent to the visa application could be relevant to determining facts relevant to the issue at hand.

The Tribunal considered evidence presented at multiple hearings, including oral testimony and written submissions, and acknowledged discrepancies between earlier tribunal findings and the transcript of oral evidence. It found that while the parties had undergone a religious ceremony on 10 July 2008, the sponsor was legally married to another woman at that time. The applicant explained that the sponsor was not in an intimate relationship with his first wife and that Indonesian law permitted polygamous marriages. However, the Tribunal also noted that the parties later married in accordance with Australian law on 11 January 2019, satisfying the time of decision criterion for a spousal relationship. Due to concerns regarding the credibility of evidence relating to the sponsor's ongoing relationship with his first wife at the time of application, and the nature of his commitment to the applicant at that time, the Tribunal concluded that the matter should be remitted for reconsideration.