Iqbal (Migration)

This matter concerned an application for review of a decision not to grant the applicant a Partner (Temporary) (Class UK) visa (Subclass 820). The applicant, who had arrived in Australia on a student visa, married the sponsor shortly after his arrival. The applicant later claimed that the relationship had ceased and that he had been a victim of family violence perpetrated by the sponsor. The Tribunal was required to determine whether the applicant met the criteria for the visa under cl.820.221(3) of the Migration Regulations 1994, which necessitates a genuine and continuing relationship that subsequently ceased, coupled with suffering family violence.

The primary legal issue before the Tribunal was to first ascertain whether the applicant and the sponsor had been in a genuine and ongoing relationship as defined by s.5F of the Migration Act 1958. This definition requires a valid marriage, a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and cohabitation or not living separately and apart on a permanent basis. The Tribunal was directed to consider all circumstances of the relationship, including financial and social aspects, the nature of the household, and the commitment to each other, as outlined in r.1.15A(3).

The Tribunal found that the parties were validly married, satisfying s.5F(2)(a). However, it proceeded to consider the other requirements for a spouse relationship under reg.1.15A(3). The applicant's own statutory declaration indicated that he had not completed his studies and wished to work in his field of Chemical Engineering, and he confirmed at the hearing that he had not completed any of his enrolled courses. The Tribunal's decision ultimately affirmed the original decision not to grant the visa, concluding that the applicant did not satisfy the criteria for its grant.