Lee (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Partner), made by a woman from South Korea who had arrived in Australia on a student visa. The applicant claimed to be in a genuine and continuing spousal relationship with an Australian citizen. The Administrative Appeals Tribunal (AAT) was required to determine whether the parties were in a de facto spousal relationship in the 12 months prior to their application and whether their relationship was genuine and continuing.

The primary legal issues before the Tribunal were whether the applicant and her sponsor were in a valid marriage for the purposes of the Act, and if so, whether they met the criteria for a genuine and continuing spousal relationship as defined by the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). Specifically, the Tribunal had to consider the requirements of clauses 820.211(2)(a) and 820.221 of Schedule 2 to the Regulations, and the factors outlined in section 5F of the Act and regulation 1.15A(3) of the Regulations, which encompass financial, household, social aspects, and the nature of the commitment to each other.

The Tribunal found that the parties were validly married on 28 December 2019, which was after the delegate's initial decision but before the Tribunal's decision. The Tribunal accepted that they had lived together continuously for a substantial period prior to their marriage, and that any temporary absences for study in Melbourne did not constitute living separately and apart on a permanent basis. The Tribunal concluded that the applicant met the criteria for a Subclass 820 Partner visa in relation to clauses 820.211(2) and 820.221.

Consequently, the Tribunal remitted the application for the Partner (Temporary) (Class UK) visa to the Minister with a direction that the applicant met the specified criteria for a Subclass 820 (Partner) visa.