Kipkemboi (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Partner), made by the applicant, a Kenyan national, who claimed to be the spouse of the sponsor, an Australian citizen. The dispute centred on whether the applicant and sponsor were in a genuine and continuing spousal relationship as defined by the *Migration Act 1958* (Cth). The decision was made by Christine Kannis, a member of the Tribunal.

The legal issues before the Tribunal were whether the applicant and sponsor were validly married, and if so, whether they met the other requirements for a spousal relationship under section 5F of the *Migration Act 1958* (Cth). Specifically, the Tribunal had to determine if there was a mutual commitment to a shared life to the exclusion of all others, if the relationship was genuine and continuing, and if they lived together or did not live separately and apart on a permanent basis. In assessing these matters, the Tribunal was required to consider all circumstances of the relationship, including the financial and social aspects, the nature of the household, and the commitment to each other, as outlined in regulation 1.15A of the *Migration Regulations 1994* (Cth).

The Tribunal found that the parties were validly married, satisfying the requirement under section 5F(2)(a) of the Act, based on the presented marriage certificate and other written evidence. The applicant and sponsor also gave oral evidence which the Tribunal described as spontaneous and forthright. However, the Tribunal concluded that it had significantly more information before it than the original delegate and that the matter should be remitted for reconsideration. The Tribunal indicated that the applicant met the criteria for the visa, but the decision was remitted for further assessment of the remaining spousal relationship requirements.