Mensah (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Partner) visa, made by an applicant born in Ghana. The applicant sought review of a decision concerning their eligibility for the visa, which required them to be in a genuine and continuing spousal relationship with an Australian citizen sponsor. The dispute centred on whether the applicant and sponsor met the criteria for a valid spousal relationship at the time of the visa application and at the time of the decision. The case was heard by Cheryl Cartwright, a Member of the Tribunal.

The primary legal issue before the Tribunal was to determine whether the applicant and the sponsor were in a spousal relationship that met the requirements of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth) at the relevant times. Specifically, the Tribunal had to consider the definition of a "spouse" under section 5F of the Act, which includes requirements for a valid marriage, mutual commitment to a shared life, a genuine and continuing relationship, and cohabitation. The Tribunal was also required to consider all circumstances of the relationship, including financial, social, household, and commitment aspects, as outlined in regulation 1.15A(3).

The Tribunal reasoned that evidence of events subsequent to the visa application could be relevant to determining the existence of facts relevant to the issue at the time of application. Having considered the evidence, including the parties' marriage, their cohabitation, and discussions about marriage prior to the applicant's return to Australia, the Tribunal was satisfied that the parties were in a spousal relationship at both the time of the visa application and the time of the decision. The Tribunal therefore remitted the application for reconsideration with a direction that the applicant met the relevant criteria for the Subclass 820 (Partner) visa.