HUNG (Migration)

This matter concerned an appeal by an applicant for a Partner (Temporary) (Class UK) visa (Subclass 820) against the Tribunal's decision to affirm the refusal of her visa application. The central dispute revolved around whether the applicant and her sponsor were in a genuine and continuing spousal relationship as defined by the *Migration Act 1958* (Cth). The applicant sought an adjournment of the Tribunal hearing to care for her ill mother, which was declined.

The legal issues before the court were whether the applicant and the sponsor were in a spousal relationship for the purposes of the Act, and whether the Tribunal had erred in its assessment of the evidence. Specifically, the court was required to consider the definition of a "spouse" under section 5F of the Act, which necessitates a valid marriage, mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and cohabitation without permanent separation. The assessment of these criteria involves examining financial aspects, the nature of the household, social aspects, and the nature of the commitment to each other, as detailed in Regulation 1.15A of the *Migration Regulations 1994*.

The Tribunal found that while the parties were validly married and had known each other for approximately six years, there was insufficient evidence to satisfy the requirements of a spousal relationship. Despite the sponsor's earlier statement of dependence and intention to buy property together, the Tribunal noted a lack of subsequent evidence regarding their commitment. Crucially, the Tribunal found inconsistent evidence provided by the applicant in her oral testimony and the absence of oral evidence from the sponsor, which led it to conclude that the parties did not provide sufficient companionship and emotional support, nor did they appear to view the relationship as long-term. The Tribunal rejected the applicant's explanations for the inconsistencies and the sponsor's absence, finding that the applicant had been afforded a fair opportunity to present her case.

Consequently, the Tribunal was not satisfied that the requirements of section 5F(2) of the Act were met at the time of the visa application or at the time of the decision. The Tribunal affirmed the decision not to grant the applicant the Partner (Temporary) visa.