Meddahi (Migration)

This matter concerned an application for review of a decision to refuse a Partner (Temporary) (Class UK) visa, subclass 820. The applicant sought to establish that he met the criteria for the visa, which required him to be the spouse or de facto partner of an Australian citizen, permanent resident, or eligible New Zealand citizen at the time of application and at the time of decision. The applicant had initially applied on the basis of being married to an eligible New Zealand citizen, but it was accepted by both parties that the relationship had ceased in March 2020, and the divorce had since been finalised.

The primary legal issue before the Tribunal was whether the applicant continued to meet the requirements of subclause 820.221(2) of Schedule 2 to the Migration Regulations 1994, which mandates that the applicant must be the spouse or de facto partner of the sponsoring partner at the time of decision, unless an exception under other subclauses of 820.221 applied. The applicant did not claim to meet any of these exceptions, which include circumstances such as the sponsor's death, family violence, or specific Family Law Act 1975 orders. Therefore, the central question was whether the applicant was still the spouse of the sponsor, as defined by section 5F of the Migration Act 1958, which requires a valid marriage, a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and cohabitation or not living permanently separately.

The Tribunal considered the definition of "spouse" under section 5F of the Act, which necessitates a valid marriage and a genuine and continuing relationship. In assessing this, regard was had to all circumstances of the relationship, including financial, household, and social aspects, as well as the nature of the commitment to each other, as outlined in regulation 1.15A(3). The Tribunal noted that the applicant and sponsor confirmed the cessation of their relationship in March 2020. Given that the applicant did not contend that he met any of the exceptions to the general requirement of being a spouse or de facto partner at the time of decision, and the marriage had ended, the Tribunal affirmed the decision not to grant the visa. The Tribunal also considered and declined the applicant's request for the matter to be referred to the Minister for Home Affairs, noting that the applicant could make such an application directly.