FORBES (Migration)

This matter concerned an appeal by the applicant, Ms. Forbes, against a decision of the Administrative Appeals Tribunal (AAT) affirming the refusal of her Partner (Temporary) (Class UK) visa, subclass 820 (Spouse). The refusal was based on the AAT's finding that the spousal relationship between Ms. Forbes and her deceased sponsor was not genuine and subsisting at the time of the sponsor's death, nor would it have continued had the sponsor not died.

The primary legal issue before the Federal Circuit and Family Court of Australia was whether the AAT had erred in law in its assessment of the genuineness and subsistence of the spousal relationship, particularly in light of the sponsor's death. Specifically, the court was required to consider whether the AAT had properly applied the relevant legislative criteria, including the provisions relating to the continuation of a spousal relationship in circumstances where one party has died.

Her Honour Justice Brophy found that the AAT had made an error of law by failing to adequately consider the evidence of emotional companionship and the applicant's care for the sponsor, as well as the evidence of joint finances, when assessing whether the relationship would have continued. The AAT had placed undue emphasis on the absence of certain documentary evidence, without giving sufficient weight to the qualitative aspects of the relationship and the applicant's contributions to the sponsor's wellbeing. The court reiterated that the assessment of a spousal relationship requires a holistic approach, considering all relevant factors, and that the death of a sponsor does not automatically extinguish the possibility of a genuine and subsisting relationship continuing.

The court set aside the AAT's decision and remitted the matter to the AAT for redetermination in accordance with the reasons provided.