Singh (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Partner), brought by Mr. Singh against the Minister for Immigration. The central dispute revolved around whether the applicant was the spouse of the Australian citizen sponsor, as defined by the Migration Act 1958 (Cth) and associated Regulations. The Tribunal was required to consider the nature of the relationship between the parties, including its financial, household, and social aspects, as well as the commitment between them. Additionally, the Tribunal had to assess whether compelling reasons existed to waive the criterion that the application was not lodged within 28 days of the applicant’s last substantive visa ceasing.

The legal issues before the Tribunal were twofold: firstly, whether the applicant and the sponsor were in a genuine and continuing spouse relationship that met the criteria outlined in section 5F of the Act, which requires a valid marriage, a mutual commitment to a shared life to the exclusion of others, and cohabitation or not living separately and apart on a permanent basis. Secondly, the Tribunal had to determine if there were compelling reasons to waive the requirement under Schedule 3 of the Migration Regulations 1994 that the application be made within 28 days of the applicant’s last substantive visa ceasing, given that the applicant’s substantive visa had ceased in July 2016.

The Tribunal considered extensive evidence, including financial documents, joint accounts, rental agreements, and statements from friends and employers, to assess the genuineness and commitment of the relationship. It also took into account a psychologist report concerning the sponsor's health. The Tribunal found that the sponsor was an Australian citizen. While the Tribunal acknowledged the applicant's previous visa status and the delay in lodging the application, it ultimately remitted the application for reconsideration by the Minister. This was with a direction that the applicant met the criteria for the Subclass 820 visa, implying that the relationship was found to be a valid spouse relationship and that the Schedule 3 criteria were either met or would be waived.