Lee (Migration)

This matter concerned an application by Ms Hyoungrae Lee for a Partner (Temporary) (Class UK) visa, subclass 820. The sponsor was Mr Stanley Yip, an Australian citizen. The core dispute revolved around whether Ms Lee was the spouse of Mr Yip at the time of the visa application and at the time of the Tribunal's decision, as required by clauses 820.211(2)(a) and 820.221 of Schedule 2 to the Migration Regulations 1994. The Tribunal was considering the first, temporary stage of the onshore Partner visa process.

The legal issues before the Tribunal were whether Ms Lee and Mr Yip were in a married relationship, as defined by section 5F of the Migration Act 1958. This definition requires that the parties be validly married, have a mutual commitment to a shared life as a married couple to the exclusion of all others, that the relationship be genuine and continuing, and that they live together or not separately and apart on a permanent basis. The Tribunal was also required to consider all relevant evidence, including events occurring after the visa application date, if such evidence logically tended to establish the existence or non-existence of the relationship at the relevant time.

The Tribunal reasoned that in assessing a spouse or de facto partner relationship for visa purposes, regard must be had to all circumstances, including the financial and social aspects of the relationship, the nature of the household, and the commitment to each other, as outlined in regulation 1.15A(3). The Tribunal noted that the applicant had provided limited documentary evidence to the Department of Home Affairs but furnished further evidence to the Tribunal that was not available to the primary decision maker. The Tribunal concluded that the application should be remitted for reconsideration, with a direction that the review applicant met the criteria for a subclass 820 visa.