Cooper (Migration)

This matter concerned an appeal to the Tribunal regarding the rejection of a Partner (Provisional) (Class UF) visa, Subclass 309. The applicant and sponsor had been in a relationship for over eleven years, with multiple previous visa applications having been refused. The Tribunal was tasked with reconsidering the applicant's eligibility for the visa, specifically focusing on whether the spousal relationship was genuine and continuing.

The primary legal issues before the Tribunal were whether the applicant and sponsor were in a genuine and continuing spousal relationship, and whether certain past discrepancies in their evidence detracted from the credibility of their claims. These discrepancies included the applicant's imperfect recall of the sponsor's past, the initial non-disclosure of the sponsor's children from a previous relationship, and the sponsor's refusal to undergo a DNA test in relation to a child from a prior relationship during a previous visa application. The Tribunal was required to assess whether these factors, individually or collectively, demonstrated that the relationship was not genuine or continuing, in accordance with the principles established in cases such as *He v MIBP* [2017] FCAFC 206.

The Tribunal reasoned that while a perfect recall of a partner's distant past might be ideal, a lack of precise knowledge was not necessarily indicative of a non-genuine relationship. Similarly, the non-disclosure of previous children, while initially raising credibility concerns, was considered in the context of the overall long-standing nature of the relationship. Crucially, the Tribunal found that the sponsor's explanation for not undergoing a DNA test – a fleeting relationship with another person at the very early stages of her acquaintance with the applicant – did not negate the genuineness or continuity of their long-term spousal relationship, as established by case law.

Consequently, the Tribunal concluded that the matter should be remitted for reconsideration by the Minister. The Tribunal directed that the visa applicant met specific criteria, namely cl.300.211 and cl.309.221 of Schedule 2 to the Migration Regulations 1994, and that the remaining criteria for the Subclass 309 visa should be considered.