Rijal (Migration)

This matter concerned an application for review by the applicant of a delegate's decision regarding a Partner (Migrant) (Class BC) visa, Subclass 100 (Spouse). The Tribunal, presided over by Christine Cody, was tasked with determining whether the applicant and the sponsor were in a genuine and continuing spouse relationship at the time of the decision. The applicant had provided a significant volume of documentation and updated information regarding their circumstances since the initial refusal.

The primary legal issue before the Tribunal was to assess whether the parties met the requirements of a spouse relationship as defined by section 5F of the Migration Act 1958 (Cth) and Regulation 1.15A of the Migration Regulations 1994. This involved considering whether the parties were married to each other under a valid marriage, whether there was a mutual commitment to a shared life to the exclusion of others, whether the relationship was genuine and continuing, and whether they lived together or not separately and apart on a permanent basis. The Tribunal was required to have regard to all circumstances of the relationship, including financial and social aspects, the nature of their household, and their commitment to each other.

The Tribunal found that the parties were validly married in Nepal on 13 May 2014, satisfying the requirement under s 5F(2)(a). Furthermore, the Tribunal considered the extensive evidence presented, including the birth of their child, Adhvik Raj Poudel, on 21 November 2018, as strong evidence of the genuine and continuing nature of their relationship. The Tribunal also noted the spontaneous and consistent nature of the evidence provided, which supported the claims made regarding the financial aspects, household arrangements, social interactions, and commitment between the applicant and sponsor.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria under cl 100.221(2)(b) of Schedule 2 to the Regulations.