Sam (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) (Subclass 820) visa by a Cambodian national sponsored by an Australian citizen. The core dispute revolved around whether the applicant met the criteria for the visa, particularly concerning the genuineness and continuation of his relationship with the sponsor, and compliance with character requirements, specifically the absence of a police certificate from Singapore. The applicant's sponsorship was withdrawn following the breakdown of the relationship, which became acrimonious after an incident involving the police.

The Tribunal was required to determine whether the applicant was in a genuine and continuing spouse or de facto relationship with the sponsor at the time of the application and at the time of the decision. Additionally, the Tribunal had to consider whether the applicant satisfied Public Interest Criterion 4001 and clause 820.223 of the Migration Regulations 1994, which relate to character requirements and the absence of a required police certificate. The Tribunal also needed to assess the validity of the marriage and the circumstances surrounding its breakdown in light of the definition of a married relationship under section 5F of the Migration Act 1958.

The Tribunal found that while the parties were validly married, their relationship had broken down in late 2021 following an altercation that led to police involvement. The applicant stated that he was instructed by the police not to contact the sponsor or her family, and the sponsor moved in with her parents, with the couple not living together or seeing each other thereafter. This evidence indicated that the couple did not live together or were not living separately and apart on a permanent basis, a requirement for a married relationship under section 5F(2)(d). Furthermore, the delegate had determined that the absence of a Singapore police certificate meant that clause 2.03AA(2) was not satisfied, and there was no basis to waive this requirement under clause 2.03AA(3), thus failing PIC 4001 and clause 820.223.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Partner (Temporary) (Class UK) (Subclass 820) visa, as the applicant failed to satisfy the criteria relating to the genuine and continuing nature of his relationship and the character requirements.