Singh (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, subclass 801 (Spouse), by an applicant whose sponsoring partner was his wife. The core dispute revolved around whether the applicant was still in a genuine spousal relationship with his sponsor at the time of the decision. The applicant contended that while the relationship had ended, the delay in processing his visa application meant that, had it been processed within the expected timeframe, he would have still been in a spousal relationship. The decision under review was made by the Administrative Appeals Tribunal.

The legal issue before the Tribunal was to determine whether the applicant met the criteria for the grant of the visa, specifically whether he was the spouse or de facto partner of the sponsoring partner at the time of the decision. This required an assessment of the current state of the relationship, notwithstanding the applicant's arguments regarding the processing time and a plea for natural justice. The Tribunal also considered whether the applicant had suffered family violence, which was a separate criterion for visa grant in certain circumstances.

The Tribunal found that the applicant and his sponsoring partner had separated in May 2017, with the sponsor moving out in June 2017. The applicant confirmed that they had not lived together since that time and had communicated primarily about concluding their affairs. He stated that his former partner had advised him to "move on" in January 2019. While the Tribunal accepted the applicant's testimony that the relationship had been genuine when they lived together and that he had suffered anguish over its ending, it also accepted his acknowledgement that he was no longer in a spousal relationship with the sponsor. The Tribunal concluded that the applicant did not meet the definition of spouse or de facto partner as required by clause 801.221(2)(c) of the Migration Regulations. Consequently, the Tribunal affirmed the decision not to grant the visa.