Shi (Migration)

This matter concerned an appeal by the applicant against the decision of the Tribunal to affirm the refusal of a Partner (Temporary) (Class UK) visa (subclass 820). The applicant, who arrived in Australia in July 2017, claimed to be married to an Australian citizen. The parties met shortly after the applicant's arrival and married in June 2018. However, significant periods of separation followed, including the applicant returning to China for six months in 2019 and not visiting Australia since October 2019. The parties had only brief meetings during their periods apart.

The primary legal issue before the Tribunal was whether the applicant and the sponsor were in a genuine and continuing spousal relationship at the time of the visa application and at the time of the decision, as required by the Migration Regulations 1994. Specifically, the Tribunal had to consider whether the parties demonstrated a mutual commitment to a shared life as a married couple to the exclusion of all others, and whether their relationship was genuine and continuing, with evidence of living together or not living separately and apart on a permanent basis.

The Tribunal reasoned that the evidence presented did not establish a genuine and continuing spousal relationship. Despite the marriage, the parties had spent substantial periods apart, with only limited contact and brief meetings. The sponsor had not provided a statement in support of the relationship, nor had they attended the hearing. The Tribunal also noted the applicant's failure to provide sufficient evidence of ongoing contact, cohabitation, or social integration as a couple, despite being given opportunities to do so. The Tribunal applied the criteria outlined in section 5F(2) of the Migration Act and Regulation 1.15A of the Migration Regulations, which require consideration of financial, household, social, and commitment aspects of the relationship.

The Tribunal affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa, concluding that the applicant had not satisfied the criteria for the grant of the visa.