FERMINO DA SILVA (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa by Mr. Fermino Da Silva, who claimed to be the spouse of an Australian citizen, Mrs. Da Silva. The dispute before the Tribunal was whether the applicant met the criteria for a Subclass 820 (Partner) visa, specifically concerning the genuineness and continuing nature of their marital relationship. The decision was made by Mireya Hyland, a Member of the Tribunal.

The primary legal issue before the Tribunal was to determine whether Mr. Da Silva satisfied the requirements of clause 820.211 of the Migration Regulations 1994, which necessitates that the applicant be the spouse of an Australian citizen at the time of application. This involved assessing whether the parties were in a married relationship as defined by section 5F of the Migration Act 1958, which requires 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 reasoned that to form an opinion on these matters, regard must be had to all circumstances of the relationship, including financial and social aspects, the nature of their household, and their commitment to each other, as outlined in regulation 1.15A(3). The Tribunal considered the couple's marriage certificate, finding their marriage valid under the Act. Crucially, the Tribunal found the evidence, including birth certificates of their twins, extensive financial documents, tenancy agreements, numerous statements from friends and family, photographs, and particularly persuasive witness testimony, strongly supported a genuine and continuing mutual commitment. The Tribunal concluded that the applicant met the criteria under cl.820.211 and cl.820.221(1) of the Regulations.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with the direction that the applicant meets the specified criteria for a Subclass 820 (Partner) visa.