Cheng (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Partner), by an applicant claiming to be the spouse of an Australian citizen. 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 case was heard by Cheryl Cartwright, a Member of the Tribunal.

The legal issues before the Tribunal were whether the applicant and the sponsor were validly married and whether they were in a genuine and continuing married relationship for the purposes of the Act. Specifically, the Tribunal was required to consider the definition of "spouse" under section 5F of the Act, which necessitates a valid marriage, a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and cohabitation or not living separately and apart on a permanent basis. The Tribunal also had to consider all circumstances of the relationship, including financial, household, and social aspects, as well as the nature of the parties' commitment to each other, as outlined in regulation 1.15A(3).

The Tribunal found that while the parties were married in Australia on 18 January 2017, and had renewed their vows in Las Vegas, the original marriage certificate was not available in the departmental file. However, the Tribunal was satisfied of the marriage based on other evidence. The Tribunal also considered evidence of events subsequent to the visa application, such as joint travel, investment in property, and the applicant's care for the sponsor's parents, as relevant to determining the existence of a genuine and continuing marriage at the time of application. Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration, directing that the applicant met the criteria for clauses 820.211(2)(a) and 820.221 of Schedule 2 to the Regulations.