Jaswal (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, subclass 820, made by the applicant who claimed to be the spouse of an Australian citizen sponsor. The Tribunal was required to determine whether the parties were in a genuine and continuing spousal relationship that met the criteria for the visa.

The primary legal issue before the Tribunal was whether the applicant and the sponsor were in a valid married relationship for the purposes of the *Migration Act 1994* (Cth) and the *Migration Regulations 1994* (Cth). This involved assessing whether the parties met the definition of 'spouse' under section 5F of the Act, which 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 also required to consider all circumstances of the relationship, including financial, social, household, and commitment aspects, as outlined in regulation 1.15A(3).

The Tribunal found that the parties were validly married under a marriage that was valid for the purposes of the Act. However, the Tribunal noted the applicant's migration history, which indicated a strong motivation to remain in Australia and concerns about the influence of a previous migration agent involved in fraudulent applications. Despite these concerns, the Tribunal concluded that the evidence pointed to more complex circumstances surrounding the applicant's continued presence in Australia. Ultimately, the Tribunal determined that the matter should be remitted for reconsideration.

The Tribunal remitted the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the criteria under cl.820.211 and cl.820.221 of Schedule 2 to the Regulations.