Gill (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa by Mr Gill, who was sponsored by Ms Baljinder Kaur. The dispute arose because the applicant and sponsor had separated and divorced, and the applicant had departed Australia. The decision under review was made by the Tribunal, presided over by Member Mary Urquhart.

The primary legal issue before the Tribunal was whether the applicant was the spouse of the sponsoring partner at the time of the decision, as required by cl.801.221(2)(c) of the Migration Regulations 1994. This required the Tribunal to determine if the applicant and sponsor were in a married relationship that was valid for the purposes of the Act, involving mutual commitment, genuineness, continuity, and cohabitation, or not living separately and apart on a permanent basis, as defined by s.5F of the Migration Act 1958.

The Tribunal reasoned that while the applicant had initially been granted a Subclass 820 visa based on a spousal relationship with the sponsor, the circumstances had changed. The sponsor had advised the Tribunal of the breakdown of the relationship and their divorce in 2016. Furthermore, the applicant had departed Australia approximately two years and four months prior to the decision and had not returned. Based on this evidence, the Tribunal concluded that the applicant was no longer in a spouse relationship with the sponsor and therefore did not meet the central requirement of cl.801.221(2)(c) at the time of the decision. The Tribunal found that the applicant did not satisfy the criteria for the grant of the visa and affirmed the decision under review.