Iqbal (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, subclass 820, made by the applicant. The sponsor, who was the applicant's partner, had initially indicated that the parties were in a genuine and continuing spousal relationship. However, the Department of Home Affairs had requested further information and evidence regarding the relationship on multiple occasions. Crucially, a Provisional Apprehended Domestic Violence Order (ADVO) was issued against the applicant for the protection of the sponsor and her daughter, followed by a Final ADVO. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the criteria for the visa, particularly in light of the ADVOs and the conflicting information provided about the relationship.

The primary legal issue before the Tribunal was whether the applicant had established a genuine and continuing spousal relationship, as required by criterion cl 820.211(2)(a)(i) of Schedule 2 to the Migration Regulations 1994. This involved assessing the financial aspects, nature of the household, social aspects, and nature of the commitment between the applicant and the sponsor, considering all circumstances of their relationship. The Tribunal also had to consider the impact of the ADVOs on the assessment of the relationship's genuineness and continuation.

The Tribunal reasoned that while the applicant had provided some evidence of the relationship, the existence of the Final ADVO, which prohibited the applicant from assaulting, threatening, harassing, or intimidating the sponsor, raised significant concerns about the genuineness and continuation of their spousal relationship. The Tribunal noted that the applicant had not provided sufficient information to address these concerns or to demonstrate that the relationship was genuine and continuing despite the ADVO. Consequently, the Tribunal remitted the application for the visa to the Minister with a direction that the applicant met the criterion cl 820.211(2)(a)(i).