Restrepo (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 Tribunal was required to determine whether the parties were in a genuine married relationship as defined by section 5F of the Migration Act 1958 (Cth) at the time of the visa application and at the time of the decision.

The legal issues before the Tribunal were whether the parties met the requirements of a married relationship under section 5F(2) of the Act, which necessitates a valid marriage, a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and cohabitation or not living separately and apart on a permanent basis. The Tribunal also had to consider all circumstances of the relationship, including financial and social 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 in Colombia in 1982 and had never divorced, thus satisfying the requirement of a valid marriage. While acknowledging past separations and relationships with other people, the Tribunal considered the evidence presented regarding their current relationship, including financial arrangements such as joint business ventures and plans for property, the nature of their household, and their stated commitment to each other, which included a high degree of companionship and emotional support. The Tribunal concluded that the parties had reconciled their relationship and demonstrated a genuine married relationship.

Consequently, the Tribunal remitted the applications for Partner (Temporary) (Class UK) visas for reconsideration, with a direction that the first named applicant met the criteria for a Subclass 820 (Partner) visa. The Tribunal also noted that the second named visa applicant continued to live with the applicant and review applicant and remained a student.