Qi (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, brought by the applicant, who claimed to be the spouse of the sponsoring partner, an Australian citizen. The core dispute revolved around whether the applicant met the definition of a spouse under section 5F of the Migration Act 1958 (Cth) and the associated regulations, which requires a married relationship characterised by mutual commitment, genuineness, continuation, and cohabitation. The decision was made by Naomi Schmitz, a Member of the Tribunal.

The Tribunal was required to determine whether the parties were in a married relationship as defined by the Act, specifically considering the elements of a valid marriage, mutual commitment to a shared life to the exclusion of others, the genuine and continuing nature of the relationship, and whether they lived together or not separately and apart on a permanent basis. In making this assessment, the Tribunal had to have regard to all circumstances of the relationship, including financial aspects, the nature of the household, and the commitment to each other, as outlined in regulation 1.15A(3) of the Migration Regulations 1994.

The Tribunal found that the parties were validly married on 5 October 2015, satisfying the requirement for a marriage valid for the purposes of the Act. While the parties did not jointly own real estate or have significant joint assets, the Tribunal accepted their explanation for deferring joint property acquisition due to their mature ages and the applicant's uncertain migration status. The Tribunal also accepted the parties' reasoning for using cash for daily expenses, citing cultural practices and the sponsor's limited technological proficiency, and found their extensive cash receipts from 2015 to 2022 to be supportive evidence.

Consequently, the Tribunal remitted the applications for the Partner (Temporary) (Class UK) visas for reconsideration, with a direction that the applicant met the criteria specified in cl 820.211(2) and cl 820.221(1) and (4) of Schedule 2 to the Regulations.