Taylor (Migration)

This matter concerned an appeal by a visa applicant against the refusal of a Partner (Provisional) (Class UF) visa, Subclass 309. The Administrative Appeals Tribunal was required to determine whether the visa applicant and the review applicant, who is an Australian citizen, were in a genuine and continuing spousal or de facto relationship at the time of the visa application and at the time of the Tribunal's decision. The Tribunal also considered the visa applicant's extensive visa history, including previous refusals, overstays, and a prior invalid application with the current sponsor.

The primary legal issue before the Tribunal was whether the relationship between the visa applicant and the review applicant met the criteria for a genuine and continuing spousal or de facto relationship as required by the Migration Regulations 1994, specifically clauses 309.211(2) and 309.221. This involved assessing various aspects of their relationship, including financial, household, and social elements, as well as the nature of their commitment to each other. The Tribunal was also tasked with considering evidence of events subsequent to the visa application, as such evidence could logically demonstrate the existence or non-existence of facts relevant to the determination of the relationship's genuineness.

The Tribunal reasoned that evidence of events occurring after the visa application date could be relevant to establishing the state of the relationship at the time of application, citing principles from *Jayasinghe v MIMA* [2006] FCA 1700 and *Minister for Immigration and Ethnic Affairs v Pochi* (1980) 4 ALD 139. In this instance, the Tribunal found it appropriate to make findings regarding both the time of application criterion (cl 309.211(2)) and the time of decision criterion (cl 309.221). The Tribunal ultimately concluded that the application should be remitted for reconsideration.

The Tribunal remitted the application for a Partner (Provisional) (Class UF) visa for reconsideration, directing that the visa applicant met the criteria under cl 309.211(2) and cl 309.221 of Schedule 2 to the Regulations. The Minister was to consider the remaining criteria for the Subclass 309 visa.