Poustchi (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, Subclass 801, before the Tribunal. The applicant had failed to meet Public Interest Criterion 4009 (PIC 4009). The core of the dispute revolved around whether the applicant intended to live permanently in Australia, despite the circumstances that had led to the parties living apart.

The Tribunal was required to determine if the applicant genuinely intended to live permanently in Australia, a key criterion for the visa. This involved assessing the parties' relationship, their reasons for living in different countries, and their future plans. The Tribunal also had to consider the impact of the applicant's business operations in Canada and the sponsor's strong desire to reside in Australia.

The Tribunal reasoned that while the applicant and sponsor had experienced a period of separation due to stress and difficulties living in Canada, their relationship remained continuing. The applicant's continued operation of his business in Canada was accepted as a consequence of the visa refusal and his belief that he could not earn income in Australia during the review process. However, the Tribunal found that the parties had provided detailed and consistent plans for their future together in Australia, with the sponsor unwilling to continue residing in Canada. The Tribunal concluded that the applicant met PIC 4009 for the purposes of clause 801.223 of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the application for a Subclass 801 visa to the Minister for reconsideration, with the direction that the applicant met PIC 4009.