Kaur (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Temporary) (Class UK) visa, subclass 820, and a Partner (Permanent) (Class UK) visa, subclass 801. The applicant sought to have the delegate's decision of 16 January 2017, which refused to grant these visas, reviewed. The applicant claimed to have suffered family violence perpetrated by her sponsor, Mr. David Armstrong, after their alleged permanent separation on 30 November 2018.

The primary legal issues before the Tribunal were whether the applicant met the criteria for being the spouse or de facto partner of the sponsor at the time of application and decision, as defined by sections 5F and 5CB of the Migration Act 1958, and whether the relationship had ceased under circumstances that would allow for a family violence exception under the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant and sponsor had a mutual commitment to a shared life, if their relationship was genuine and continuing, and if they lived together or did not live separately and apart on a permanent basis.

The Tribunal found that the applicant did not satisfy the requirements of regulation 820.211 or 820.221, nor was she the spouse of the sponsor under section 5F of the Act. While the parties were married, the Tribunal was not persuaded that they pooled their finances, shared household responsibilities, or had a mutual commitment to a shared life as a married couple to the exclusion of others. Evidence indicated the sponsor maintained a relationship with another woman throughout the marriage, and there was a lack of genuine companionship and emotional support. Consequently, the Tribunal affirmed the delegate's decision not to grant the visas.