Kim (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant, who is Korean, claimed to be the spouse of the sponsor, an Australian citizen of Vietnamese birth. The dispute centred on whether the parties were in a genuine and continuing married relationship at the time of the visa 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, constituted by Cheryl Cartwright, considered the evidence presented regarding the parties' relationship.

The primary legal issue before the Tribunal was to determine if the applicant and the sponsor met the criteria for a spouse relationship under section 5F of the Migration Act 1958. This required assessing whether they were married to each other under a valid marriage, demonstrated a mutual commitment to a shared life to the exclusion of others, and whether their relationship was genuine and continuing, including living together or not living separately and apart on a permanent basis. In making this assessment, the Tribunal was required to have regard to all circumstances of the relationship, including financial and social aspects, and the nature of their household, as outlined in regulation 1.15A(3).

The Tribunal reasoned that while the parties were validly married, the evidence regarding the nature of their household and other aspects of their relationship was insufficient to make a conclusive finding on all the required criteria. The Tribunal noted that evidence of events subsequent to the visa application could be relevant if it logically tended to show the existence or non-existence of facts relevant to the issue at the time of application. Given the limited evidence concerning the household arrangements and the overall circumstances, 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, and the application was remitted to the Minister for consideration of the remaining criteria for the Subclass 820 visa.