JALLI (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Partner), by a 40-year-old male applicant residing in Sydney, sponsored by Ms Shailaja Valmiki, a 36-year-old Australian citizen also residing in Sydney. The central dispute was whether the applicant and Ms Valmiki were in a genuine and continuing spousal relationship at the time of the visa application and at the time of the decision. The decision was made by Moira Brophy, a Member of the Tribunal.

The legal issues before the Tribunal were 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 determining if the parties were married to each other under a marriage valid for the purposes of the Act, if there was a mutual commitment to a shared life as a married couple to the exclusion of all others, if the relationship was genuine and continuing, and if they lived together or not separately and apart on a permanent basis, as defined by section 5F of the Migration Act 1958.

The Tribunal considered the oral evidence provided by the applicant and sponsor, finding them to be credible and their accounts consistent regarding how they met, the development of their relationship, and their current living arrangements. The Tribunal accepted their evidence that they met by arrangement in accordance with their custom, informed their parents, became engaged, and were married. They had a child born in October 2017, and the applicant had been living in Australia with the sponsor since December 2015. The Tribunal noted that in forming an opinion about these matters, regard must be had to all circumstances of the relationship, including financial, social, household, and commitment aspects, as outlined in regulation 1.15A(3).

The Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria for the Subclass 820 Partner visa under clauses 820.211 and 820.221 of Schedule 2 to the Regulations.