Khambhatta (Migration)

This matter concerned a review of a decision regarding a Partner (Migrant) (Class BC) visa, Subclass 100. The applicant, Ms Sunilkumar, sought to establish that she was the spouse of Mr Kelvin Christian for the purposes of the visa application. The Tribunal was required to determine whether the parties were in a genuine and continuing married relationship, meeting the criteria for a spouse as defined in section 5F of the Migration Act 1958 (Cth).

The Tribunal considered the definition of "spouse" under section 5F of the Act, which requires that the parties be married to each other under a valid marriage, have a mutual commitment to a shared life to the exclusion of all others, that the relationship be genuine and continuing, and that they live together or not separately and apart on a permanent basis. In assessing these criteria, the Tribunal had regard to all circumstances of the relationship, including financial and social aspects, the nature of the household, and their commitment to each other, as outlined in regulation 1.15A(3) of the Migration Regulations 1994.

The Tribunal was satisfied that the parties were validly married under Indian law, evidenced by a marriage certificate. Furthermore, the Tribunal found that the financial aspects of the relationship supported the applicant's claims, noting joint ownership of assets, a joint mortgage for their matrimonial home, and the couple's shared responsibility for the care and custody of their children. The Tribunal also took into account the birth certificate of their child, which identified Mr Christian as the father and referenced their marriage. Based on these findings, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal remitted the application for a Partner (Migrant) (Class BC) visa for reconsideration, with a direction that the applicant meets criterion cl.100.221 of Schedule 2 to the Regulations.