Kuburoski (Migration) - [2025] ARTA 303

KUBUROSKI (MIGRATION) [2025] ARTA 303 (27 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Jovan Kuburoski
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2405266

Tribunal:Kira Raif
Place:Sydney
Date: 27 February 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211(2)(a) of Schedule 2 to the Regulations; and
·cl 820.221(1)(a) of Schedule 2 to the Regulations

Statement made on 27 February 2025 at 2:52pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Circuit and Family Court remittal – genuine and continuing relationship – validly married – financial, household and social aspects of relationship and nature of commitment – generally consistent evidence and supporting statements – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 820.211(2)(a), 820.221(1)(a)
CASE
Nagaki v MIBP [2016] FCCA 1070
STATEMENT OF REASONS
Application for review

This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of Macedonia, born in August 1960. He applied for the visa on 14 January 2016 on the basis of his relationship with his sponsor. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.211 and cl. 820.221 because the delegate was not satisfied the applicant was the spouse of the sponsor. The applicant seeks review of the delegate’s decision.
In August 2018 the Tribunal (differently constituted) affirmed the decision under review. The applicant sought judicial review of the Tribunal’s decision and the matter was remitted to the Tribunal for reconsideration in March 2024.
The applicant appeared before the Tribunal on 27 February 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The sponsor’s sister and a family friend were also available to give oral evidence but the Tribunal determined it was not necessary to take oral evidence from them. The Tribunal hearing was conducted with the assistance of an interpreter in the Macedonian and English languages. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Relevant law
At the time the application was made, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.
‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in reg 1.15A(3). Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant provided with his application evidence that he and the sponsor registered their marriage in Australia in December 2015. There is nothing to suggest the marriage is not valid. The Tribunal is satisfied the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).
Are the other requirements for a spouse relationship met?
The couple claim to have first met in Macedonia in a café. They had a chat and went out while the sponsor was in Macedonia on holidays. They continued to speak, to each other after the sponsor came to Australia. The applicant travelled to Australia with a friend and made contact with the sponsor. The partners continued to communicate with each other and made the decision to marry. They registered marriage in Australia in December 2015 and it is claimed that from that time the applicant has been living with the sponsor and her father until more recently they had built, and moved into a ‘granny flat’ at the sponsor’s property.
The primary application was accompanied by minimal documentary evidence of the relationship. There was additional evidence before the first Tribunal and some additional evidence before the present Tribunal. The applicant explained to the Tribunal that initially they did not have many documents in their own names as they lived with the sponsor’s father who was responsible for the various payments.
The Tribunal has found the applicant and sponsor to be truthful witnesses. They gave generally consistent evidence about their living arrangements, financial and other affairs and while there had been some deficiencies in evidence (of particular concern is the sponsor’s inability to recall some significant matters), these do not necessarily detract from the veracity of the couple’s claims.
In considering the financial aspects of the relationship, the Tribunal accepts that the couple maintain a joint bank account where their income is deposited. The Tribunal accepts that they pool their funds for major expenses such as travel and the purchase of a car, as well as for their daily living expenses. There is little evidence about the joint ownership of assets or joint liabilities.
As noted above, the parties gave consistent evidence about their living arrangements. The Tribunal accepts that they had previously lived with the sponsor’s father and, more recently they have added a ‘granny flat’ in the sponsor’s home where they now live. They spoke about the arrangements for the domestic responsibilities and the Tribunal accepts that these are shared.
There are statements before the Tribunal from third parties, including family members, and a letter from a local priest confirming the couple’s attendance at religious functions. The couple poke about frequent contact between family members and the support the applicant provides to the sponsor’s elderly father. The Tribunal is satisfied the applicant and sponsor represent themselves to others as being in a genuine relationship and that their friends and acquaintances believe the relationship to be genuine. The Tribunal accepts they plan and undertake joint social activities.
The couple have been married for approximately nine years. They spoke about their plans for the future, including traveling to Macedonia to visit the applicant’s siblings, and their desire to have children. The Tribunal accepts that they provide companionship and emotional support to each other and that they view the relationship as a long term one.
Having regard to all the circumstances of the relationship, the Tribunal is satisfied that the applicant and sponsor have a mutual commitment to shared life to the exclusion of others. The Tribunal is satisfied their relationship is genuine and continuing. The Tribunal is satisfied they live together. The Tribunal is satisfied that the requirements of s 5F(2) are met at the time the visa application was made and the time of this decision. The Tribunal finds that the applicant meets cl. 820.211(2)(a) and cl. 820.221(1)(a).
Conclusion
Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.
DECISION
The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211(2)(a) of Schedule 2 to the Regulations; and
·cl 820.221(1)(a) of Schedule 2 to the Regulations
Date(s) of hearing: 27 February 2025
Representative for the Applicant: n/a