Gai (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, before the Federal Circuit and Family Court of Australia. The applicant, a Chinese national, sought the visa based on his relationship with the sponsor, an Australian citizen. The Department had previously refused the visa application, finding that the applicant was not the spouse or de facto partner of the sponsor as defined by the relevant sections of the Act.

The primary legal issue before the Court was to determine whether the applicant and sponsor were in a genuine and continuing spousal or de facto relationship, as defined by sections 5B and 5F of the Migration Act 1958 (Cth) and Regulation 1.15A of the Migration Regulations 1994. This required an assessment of the financial, household, social aspects of their relationship, and the nature of their commitment to each other, considering the duration and nature of their interactions, including periods of separation and remarriage.

The Court considered the evidence presented, including joint financial documents, a contract for the sale of a business, joint utility bills, and statements from friends and family. It noted the applicant and sponsor's history, including a previous marriage, divorce, and remarriage to each other after separate marriages and divorces. The Court found that the evidence, when viewed holistically, demonstrated a genuine and continuing relationship, with sufficient evidence of financial and household interdependence, social interaction, and a commitment to each other. The sponsor's non-disclosure of criminal convictions to the applicant was given no weight in the assessment of the relationship's genuineness.

Consequently, the Court remitted the application for the visa to the Minister with a direction that the applicant met the criteria for a Subclass 820 Partner visa, specifically clauses 820.211(2)(a) and 820.221(1)(a) of Schedule 2 to the Regulations, and regulation 2.03A.