Mohan (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Partner), made by the applicant who claimed to be the spouse of the deceased sponsor. The dispute before Deputy President Justin Owen of the Tribunal was whether the applicant had established that she was in a genuine and continuing spousal relationship with the sponsor at the relevant times, particularly in light of the sponsor's death. The applicant presented evidence of a long marriage, separation, reconciliation, and the sponsor's financial support during a period of separation, alongside personal and community ties.

The Tribunal was required to determine whether the applicant met the criteria for a spousal relationship as defined by section 5F of the Migration Act 1958 (Cth) and regulation 1.15A of the Migration Regulations 1994. This involved assessing whether the parties were validly married and, if so, whether they demonstrated a mutual commitment to a shared life as a married couple to the exclusion of all others, that the relationship was genuine and continuing, and that they lived together or did not live separately and apart on a permanent basis. The Tribunal also had to consider all circumstances of the relationship, including financial, household, social aspects, and the nature of their commitment to each other.

The Tribunal found that the applicant and sponsor were lawfully married on 28 January 1983, satisfying the requirement for a valid marriage under section 5F(2)(a). However, the Tribunal concluded that further consideration of the remaining criteria for a spousal relationship was necessary, given the complexity of the evidence presented, including the sponsor's death. Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that the applicant met the criteria under clauses 820.211(2) and 820.221(2) of Schedule 2 to the Regulations, pending a full assessment of the relationship's genuineness and continuation.