Koech (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa by the applicant, Koech. The dispute arose from the assessment of whether the applicant was in a de facto relationship with the sponsor at the time of the visa application, a key criterion for the visa. The decision was made by a Tribunal, which considered evidence that had not been presented to the original delegate.

The legal issues before the Tribunal were whether the applicant met the criteria for a Subclass 820 (Partner) visa, specifically concerning the existence of a de facto relationship. This required the Tribunal 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 stipulated by regulation 1.09A(3) of the Migration Regulations 1994. The Tribunal also had to determine the weight to be given to various pieces of documentary evidence submitted by the applicant, and to assess information contained in a section 376 certificate.

The Tribunal reasoned that, in assessing a de facto relationship, it must consider all the circumstances as outlined in regulation 1.09A(3). It noted that the delegate had not considered all the evidence now before the Tribunal. The Tribunal also found that information within a section 376 certificate, which suggested false statements had been made, related to a previous visa application by the sponsor and not the current applicant, and therefore placed no weight on it. Having considered the evidence and the relevant regulations, the Tribunal determined that the application should be remitted.

The Tribunal remitted the application for a Partner (Temporary) (Class UK) visa with a direction that the applicant meets the criteria for a Subclass 820 (Partner) visa, specifically clauses 820.211(2) and 820.221(3)(b) of Schedule 2 to the Regulations, at the relevant times.