Kumar (Migration)

This matter concerned an appeal by an applicant for a Partner (Temporary) (Class UK) visa, subclass 820, against a decision to refuse the visa. The applicant and the sponsor were validly married in Queensland on 27 February 2016. However, the sponsor had advised the Department in October 2017 that the relationship had ended, and the applicant had been placed on notice that the ongoing nature of the relationship was in question. The decision under review was made on the papers.

The Tribunal was required to determine whether, at the time of its decision, the applicant continued to be the spouse of the sponsor, or met alternative criteria under cl.820.221(2) or (3) of the Migration Regulations 1994. Specifically, the Tribunal had to consider the definition of "spouse" under s.5F of the Migration Act 1958, which requires a married relationship, a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and cohabitation or not living separately and apart on a permanent basis.

The Tribunal found that while the parties were validly married, there was no evidence before it to demonstrate that the relationship was genuine and continuing at the time of the decision. Since the primary decision was made, the applicant had not provided any documentary evidence to establish ongoing financial or household arrangements, social interaction, or a mutual commitment to the relationship. The Tribunal had regard to the matters set out in r.1.15A(3) of the Migration Regulations 1994, which include financial, household, social aspects, and the nature of the commitment to each other.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa, subclass 820, as the applicant had failed to satisfy the criteria for the grant of the visa.