Kaur (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by the applicant to the Department. The applicant claimed to be the spouse of an Australian citizen. The Tribunal was required to consider whether the applicant and the sponsor were in a genuine and continuing married relationship at the time of the application and at the time of the decision, as required by clauses 820.211(2)(a) and 820.221 of Schedule 2 to the Migration Regulations 1994. The Tribunal also considered a non-disclosure certificate issued under s 376 of the Act, which contained allegations of fraud and a contrived marriage, but ultimately gave it little weight due to a lack of supporting evidence.

The primary legal issue before the Tribunal was whether the applicant and the sponsor were validly married and in a genuine and continuing spouse relationship for the purposes of the Act. This required the Tribunal to assess all the circumstances of the relationship, including financial aspects, the nature of the household, social aspects, and the nature of their commitment to each other, as outlined in regulation 1.15A(3). The Tribunal also had to consider whether evidence of events subsequent to the visa application date was relevant to determining the existence of the relationship at the time of application.

The Tribunal reasoned that while the s 376 certificate was validly made, the information within it was not supported by subsequent evidence, leading it to give the certificate minimal weight. The Tribunal applied the principles established in *Jayasinghe v MIMA* [2006] FCA 1700 regarding the relevance of subsequent events to facts existing at the time of application. After considering the evidence, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that the applicant met the criteria under cl 820.211(2)(a) and cl 820.221.