Chaturvedi (Migration)

This matter concerned an appeal to the Tribunal by an applicant for a Partner (Temporary) (Class UK) visa, subclass 820. The applicant, born in India, had a complex immigration history involving previous student visa applications and reviews. The visa application was initially refused on the grounds that the applicant did not meet Schedule 3 criteria due to not holding a substantive visa. Following a remission of the decision, the application was refused again, this time on the basis that the applicant had not satisfied subclause 820.211(2)(a) of the Migration Regulations 1994, meaning the delegate was not satisfied that the applicant was in a genuine spousal relationship with the sponsor, who was an eligible New Zealand citizen.

The primary legal issue before the Tribunal was whether the applicant and the sponsor were in a genuine spousal relationship at the time of the visa application and at the time of the decision, as required by clauses 820.211(2)(a) and 820.221 of the Migration Regulations 1994. This required the Tribunal to consider all circumstances of the relationship, including financial, household, social aspects, and the nature of the commitment to each other, as outlined in regulation 1.15A. A secondary issue arose regarding the applicant's explanation for not lodging the Partner visa application before his last substantive visa ceased, which he attributed to ongoing visa review and ministerial intervention processes.

The Tribunal affirmed the decision to refuse the visa. In its reasoning, the Tribunal found the applicant's explanation for the delay in lodging the Partner visa application to be inconsistent. While initially claiming he could not apply due to ongoing visa considerations, the applicant later acknowledged he understood he could have withdrawn his appeals and applied earlier. This inconsistency, coupled with the Tribunal's assessment of the evidence presented regarding the relationship, led to the conclusion that the applicant had not met the criteria for the visa. The Tribunal applied the principles of assessing the genuineness of a spousal relationship by considering the various factors outlined in regulation 1.15A, and found the evidence insufficient to establish a genuine and continuing spousal relationship.

The Tribunal affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.