Rafique (Migration)

This matter concerned an appeal by an applicant for a Partner (Temporary) (Class UK) visa, subclass 820, against a delegate's decision. The applicant had arrived in Australia in 2011 on student visas and lodged the Partner visa application on 5 May 2017. The Department's file contained a certificate under s.376 of the Act indicating that disclosure of certain material, which alleged a fraudulent marriage for visa purposes, would be contrary to the public interest. The applicant was invited to comment on this certificate but did not respond in writing. However, prior to the hearing, the applicant provided documents confirming the cessation of his relationship with the sponsor and the birth of a child from that relationship, and gave oral evidence.

The Tribunal was required to determine whether the applicant and his sponsor were in a genuine and continuing married relationship at the time of the visa application, as required by clauses 820.211(2)(a) and 820.221 of Schedule 2 to the Regulations. This involved assessing whether the parties were validly married, had 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 not separately and apart on a permanent basis, in accordance with s.5F(2) of the Act. The Tribunal also had to consider all the circumstances of the relationship, including financial, social, household, and commitment aspects, as outlined in r.1.15A(3).

The Tribunal found the applicant to be a credible and honest witness, accepting his oral evidence. Applying the principles from *Bretag v MILGEA* [1991] FCA 582, the Tribunal considered the subsequent history of the relationship, specifically the birth of a child, as evidence tending to show the existence of facts relevant to the genuineness of the relationship at the time of application. Based on its findings, the Tribunal concluded that the applicant met the criteria for being in a spouse relationship at the time of application.

Consequently, the Tribunal remitted the application for a Partner (Temporary) (Class UK) visa, subclass 820, to the Minister for reconsideration of the remaining visa criteria. The Tribunal directed that the applicant met the criteria specified in cl.820.211(2)(a) and cl.820.221 of Schedule 2 to the Regulations.