Marshall (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for a Partner (Temporary) (Class UK) visa made by an applicant from the Philippines, sponsored by an Australian citizen. The core dispute concerned the applicant's eligibility for a Subclass 820 visa despite the cessation of their relationship with the sponsor, which occurred after the applicant's arrival in Australia. The applicant and sponsor married in February 2016, and a child was born in March 2020, but they separated in April 2020.

The Tribunal was required to determine whether the applicant met the criteria for a Subclass 820 visa, specifically under clause 820.221(3) of the Migration Regulations 1994, which allows for visa grants even if the relationship has ceased, provided certain conditions are met. These conditions include the existence of a genuine and continuing relationship prior to its cessation and the presence of specific circumstances related to children of the relationship, such as custody or access arrangements. The Tribunal also had to consider the definition of a "spouse" under section 5F of the Migration Act 1958, which requires a married relationship, mutual commitment, genuineness, continuation, and cohabitation, or not living permanently apart.

The Tribunal reasoned that for clause 820.221(3) to apply, it must first be satisfied that a genuine and continuing spousal relationship existed before it ceased. The delegate had not been satisfied of this, and the Tribunal reviewed documentary evidence including statutory declarations, financial records, communications, and a child support assessment. The Tribunal ultimately found that the applicant met certain criteria, including cl.820.211(2)(a) and (d)(ii), and cl.820.221(3)(b)(ii).

Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that the applicant be taken to meet the specified criteria for a Subclass 820 visa.