Kiboss (Migration)

This matter concerned an application for review by Mr Kiboss of a decision by the delegate to refuse him a Partner (Temporary) (Class UK) visa, subclass 820. The application was based on his relationship with Ms Catherine Anne Sawtell, an Australian citizen, who had initially provided sponsorship. The delegate had refused the visa on the grounds that there was insufficient evidence of a genuine and continuing married relationship, and also noted a Schedule 3 compliance issue due to Mr Kiboss not holding a substantial visa at the time of application. The Administrative Appeals Tribunal was required to determine the issues in light of events occurring after the delegate's decision, including the withdrawal of Ms Sawtell's sponsorship and Mr Kiboss's claim of being a victim of domestic violence.

The Tribunal was required to assess whether Mr Kiboss and Ms Sawtell were in a genuine and continuing married relationship at the time of the visa application on 18 October 2017. The Tribunal also had to consider the implications of Ms Sawtell's subsequent withdrawal of sponsorship and Mr Kiboss's allegations of domestic violence, including a temporary restraining order. The Tribunal was not required to consider the Schedule 3 waiver as it was contingent on finding a genuine relationship.

The Tribunal accepted that Mr Kiboss and Ms Sawtell had met in May 2016, commenced living together in June 2016, and were legally married in December 2016. It was also accepted that they had lived together until January 2020. Despite Ms Sawtell's later withdrawal of sponsorship and the domestic violence allegations, the Tribunal found that the parties were in a genuine married relationship at the time of the visa application. Consequently, the Tribunal remitted the matter to the delegate for reconsideration, including the assessment of the Schedule 3 waiver.