Kim (Migration)

This matter concerned an appeal by the applicant against the refusal of a Partner (Temporary) (Class UK) visa (Subclass 820). The applicant, who arrived in Australia on a Working Holiday visa, met the sponsor through a dating application in December 2015. The parties commenced cohabitating in March 2016, married in May 2016, and have since attempted to conceive a child together. The applicant’s initial visa application was refused due to a lack of supporting evidence provided to the delegate.

The primary legal issue before the Tribunal was whether the applicant was in a spousal relationship with the sponsor, as defined by the Migration Regulations 1994, at the time of the application and at the time of the decision. This required determining if the parties were validly married, shared a mutual commitment to a shared life as a married couple to the exclusion of others, had a genuine and continuing relationship, and lived together without permanent separation, as stipulated by section 5F of the Act and Regulation 1.15A(3).

The Tribunal found that the parties were validly married under Australian law. Despite the limited evidence initially provided to the delegate, the Tribunal considered extensive oral and documentary evidence presented during the hearing. The Tribunal found both the applicant and the sponsor to be credible and consistent witnesses, noting their strong desire to conceive a child, the applicant's provision of companionship and emotional support to the sponsor, and their cohabitation and shared life. Consequently, the Tribunal concluded that the parties were in a genuine and committed spousal relationship.

The Tribunal remitted the application for reconsideration with a direction that the applicant met the criteria for a Subclass 820 Partner visa under clauses 820.211(2) and 820.221 of Schedule 2 to the Regulations.