Ghimire (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, which had been remitted for reconsideration. The applicant sought to establish a genuine and continuing spousal relationship with an Australian citizen. The Tribunal, constituted by Rosa Gagliardi, was tasked with reviewing the evidence and determining whether the applicant met the relevant criteria for the visa.

The primary legal issue before the Tribunal was to determine whether the applicant and the sponsor were in a genuine and continuing spousal relationship, as required by clauses 820.211 and 820.221 of Schedule 2 to the Migration Regulations 1994. This involved assessing various aspects of the relationship, including financial, household, social, and commitment elements, as outlined in regulation 1.15A. The Tribunal also had to consider whether it had erred in its previous assessment by making pre-emptory remarks not based on probative evidence, particularly concerning the applicant's migration history and the breakdown of his previous marriage.

The Tribunal found that it had erred in making initial remarks that raised questions about the genuineness of the relationship without sufficient evidence. While concerns about the applicant's migration history, including remaining in Australia unlawfully and the circumstances of his previous marriage breakdown, were noted, the Tribunal concluded that these were not necessarily determinative of the current relationship's genuineness. The Tribunal considered the explanations provided by the applicant and sponsor regarding their meeting, the applicant's previous marriage, and their current relationship. Ultimately, the Tribunal determined that the application should be remitted for reconsideration, with a direction that the applicant met the criteria under clauses 820.211 and 820.221.