SINGH (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, Subclass 801 (Partner) visa, where the applicant claimed to be the spouse of the sponsoring partner, an Australian citizen. The core dispute revolved around whether the parties were in a genuine and continuing married relationship, as defined by the Act, or if the relationship was contrived for the purpose of obtaining Australian permanent residency. The delegate had previously refused the visa, relying on information from a home visit in India and other unfavourable information, concluding the applicant was in a contrived relationship and was married to another individual in India.

The Tribunal was required to determine if the applicant met the criteria for a spousal relationship under the Migration Act 1994, specifically whether the parties were in a married relationship that was valid, involved mutual commitment to a shared life to the exclusion of others, was genuine and continuing, and if they lived together or not separately and apart on a permanent basis. This involved considering all circumstances of the relationship, including financial and social aspects, the nature of their household, and their commitment to each other, as outlined in regulation 1.15A(3).

The Tribunal found that the parties were validly married on 13 June 2011, satisfying the requirement of being married to each other under a marriage valid for the purposes of the Act. However, the delegate's decision to refuse the visa was based on information suggesting a contrived relationship and a prior marriage in India, which the applicant had not adequately addressed. The delegate also found insufficient evidence regarding the genuineness and continuation of the relationship, noting limited financial and household evidence, separate travel, and the applicant's parents' alleged lack of knowledge of the sponsor. The Tribunal concluded that the matter should be remitted for reconsideration, directing that the applicant met the criteria under cl.801.221(2) of Schedule 2 to the Regulations.