Nitassirikun (Migration)

This matter concerned an appeal by Mr. Patcharadanai Nitassirikun against a decision to affirm the refusal of his Partner (Temporary) (Class UK) visa application. The applicant claimed to be in a spousal relationship with an Australian citizen, Ms. Thi Yen Tran, who lodged the sponsorship. The Tribunal, presided over by Stephen Witts, was tasked with determining whether the applicant and sponsor were in a genuine spousal or de facto relationship.

The central legal issue before the Tribunal was whether the applicant met the requirements of clauses 820.211(2)(a) and 820.221 of the Migration Regulations 1994, which stipulate that the applicant must be the spouse or de facto partner of an Australian citizen at the time of application and at the time of the decision. This required an assessment of whether the parties were in a married relationship, as defined by section 5F of the Migration Act 1958, which includes mutual commitment to a shared life, a genuine and continuing relationship, and cohabitation, or not living separately and apart on a permanent basis. The Tribunal was required to consider all circumstances of the relationship, including financial, social, household, and commitment aspects, as outlined in regulation 1.15A(3).

The Tribunal affirmed the delegate's decision to refuse the visa. The delegate had found that the applicant and sponsor failed to demonstrate they presented as a married couple to their community, engaged in regular joint social activities, or provided sufficient evidence under regulations 1.15A and 1.09A to establish a genuine and continuing spousal or de facto relationship as defined by the Act. The Tribunal noted that the applicant had arrived in Australia on a student visa, subsequently became non-compliant with visa conditions, and lodged the partner visa application. Crucially, the applicant did not provide further evidence to support their claims after the sponsor withdrew their sponsorship.

Consequently, the Tribunal concluded that the applicant did not satisfy the criteria for the grant of the visa and affirmed the decision not to grant the Partner (Temporary) (Class UK) visa.