Tang (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Partner). The applicant, who is from China, met the sponsor, an Australian citizen, online in September 2018. They met in person on two occasions before the applicant returned to China. The applicant then returned to Australia in February 2019, moved in with the sponsor and his mother, and the parties married on 10 May 2019. The applicant developed a close relationship with the sponsor's mother, assisting in her care until her death in November 2020. Subsequently, the sponsor suffered a stroke in March 2021, rendering him unable to work, and the applicant has since been caring for him. The decision under review was made by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant and the sponsor were in a genuine and continuing spouse relationship at the time of the visa application on 16 August 2019, and at the time of the decision, as required by clauses 820.211(2)(a) and 820.221 of Schedule 2 to the Migration Regulations 1994. This required an assessment of whether the parties were married to each other under a marriage valid for the purposes of the Act, demonstrated a mutual commitment to a shared life as a married couple to the exclusion of all others, and lived together or not separately and apart on a permanent basis, pursuant to section 5F(2) of the Migration Act 1958. The Tribunal was required to consider all circumstances of the relationship, including financial and social aspects, the nature of the household, and the commitment to each other, as outlined in regulation 1.15A(3).

The Tribunal reasoned that evidence of events subsequent to the visa application date could be relevant if it logically tended to show the existence or non-existence of facts relevant to the issue at the time of application. The Tribunal found that the parties were validly married on 10 May 2019. However, the Tribunal concluded that the matter should be remitted for reconsideration, with a direction that the applicant met the criteria under cl 820.211(2)(a) and cl 820.221. This indicates that while the validity of the marriage was established, further consideration was required regarding the other aspects of a genuine and continuing spouse relationship.

The Tribunal remitted the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the criteria under cl 820.211(2)(a) and cl 820.221 of Schedule 2 to the Regulations.