Thiruchelvam (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding a Partner (Provisional) (Class UF) visa, subclass 309. The review applicant sought to have the Tribunal reconsider a decision that had refused the visa application for the visa applicant, who was his spouse. The core of the dispute revolved around whether the relationship between the parties was genuine and continuing, as required for the visa.

The Tribunal was required to determine whether the visa applicant was the "spouse" of the review applicant, as defined by the Migration Act 1958 (Cth). This involved assessing the genuineness and continuing nature of their relationship, considering various aspects including financial, household, social, and commitment elements as outlined in regulation 1.15A of the Migration Regulations 1994. The Tribunal also had to consider evidence of events subsequent to the visa application, provided such evidence logically tended to show the existence or non-existence of facts relevant to the determination of the relationship's status at the time of application.

The Tribunal's reasoning acknowledged discrepancies in the evidence presented by the parties, such as differing accounts of wedding attendance numbers, the duration of a visit to Sri Lanka, and the visa applicant's hobbies. However, it ultimately found that the review applicant and the visa applicant met the criteria for a spousal relationship under section 5F(2) of the Act, both at the time of the visa application and at the time of the decision. The Tribunal also accepted the explanations provided for the discrepancies, attributing them to the nature of the questions asked and language barriers.

Consequently, the Tribunal remitted the application for the Partner (Provisional) (Class UF) visa for reconsideration by the Minister. The direction was that the visa applicant met the criteria specified in cl 309.211 and cl 309.221 of Schedule 2 to the Regulations, leaving the remaining criteria to be assessed.