De Castro (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa (Subclass 820). The primary issue before the Tribunal was whether the couple were in a genuine spousal relationship as defined by section 5F of the Migration Act 1958 (Cth). The applicants relied on evidence previously provided to the Department and the Tribunal, along with written submissions.

The Tribunal was required to determine if the parties met the criteria for a spousal relationship under clauses 820.211 and 820.221 of the Regulations. This involved assessing whether the parties were married, and if so, whether they had a mutual commitment to a shared life as a married couple to the exclusion of all others, that the relationship was genuine and continuing, and that they lived together or not separately and apart on a permanent basis, as stipulated by section 5F(2) of the Act. In making this assessment, the Tribunal was directed to consider all circumstances of the relationship, including the financial and social aspects, the nature of their household, and their commitment to each other, as outlined in regulation 1.15A(3).

The Tribunal found that the parties were validly married on 22 April 2018, satisfying section 5F(2)(a) of the Act. However, the decision indicates that further consideration was required regarding the other criteria for a spousal relationship. Consequently, the Tribunal remitted the applications for the Partner (Temporary) (Class UK) visas with a direction that the first applicant met the criteria under clauses 820.211 and 820.221 of the Regulations. The Tribunal also found that the secondary applicant was a member of the family unit of the primary applicant.