Vikas (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, subclass 820, made by an applicant who had been in Australia without a substantive visa since November 2010. The applicant claimed to be the spouse of an Australian permanent resident. The Tribunal was required to consider whether the parties were in a genuine and continuing married relationship, and whether the applicant met the other criteria for the visa, including those relating to Schedule 3.

The primary legal issues before the Tribunal were whether the parties were validly married, whether they met the requirements of a married relationship as defined by section 5F of the Migration Act 1958 (Cth), and whether the applicant satisfied the criteria under Schedule 3 of the Migration Regulations 1994, particularly in relation to lodging the application outside the prescribed timeframe and the grounds for a waiver. The Tribunal also had to consider the various aspects of the relationship, including financial, household, social, and commitment elements, as outlined in regulation 1.15A.

The Tribunal found that the parties were validly married, satisfying clause 820.211(2)(a) and the requirement under section 5F(2)(a) of the Act. It also found that the parties met the criteria under clause 820.211(2)(d)(ii) of Schedule 2, indicating they did not live separately and apart on a permanent basis. However, the Tribunal determined that the matter should be remitted for reconsideration by the Minister to consider the remaining criteria for the subclass 820 visa, including the Schedule 3 requirements and the assessment of the genuine and continuing nature of the married relationship based on the financial, household, social aspects, and the nature of their commitment.