Wanna (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant, a national of Thailand, claimed to be the spouse of an Australian citizen sponsor. The core dispute revolved around whether the parties were in a genuine spousal relationship at the time of the visa application and the subsequent decision. The Tribunal was tasked with reviewing the delegate's decision.

The legal issues before the Tribunal were whether the parties met the requirements of a married relationship as defined by section 5F of the Migration Act 1958 (Cth). This definition requires a valid marriage, a mutual commitment to a shared life as a married couple to the exclusion of all others, a genuine and continuing relationship, and that the couple live together or not separately and apart on a permanent basis. In assessing these criteria, the Tribunal was required to consider all circumstances of the relationship, including financial aspects, the nature of the household, social aspects, and the nature of the commitment to each other, as outlined in regulation 1.15A(3) of the Migration Regulations 1994.

The Tribunal found that the parties were validly married in Melbourne on 28 January 2016, satisfying the requirement of a valid marriage under section 5F(2)(a). However, the delegate had determined that the parties had not pooled their financial resources, lacked significant joint assets or liabilities, had not made significant joint purchases, and did not share day-to-day financial responsibilities. The Tribunal considered additional evidence not presented to the delegate, including statutory declarations, oral evidence from third parties, bank statements, and photographs. Despite this additional evidence, the Tribunal concluded that the delegate's assessment of the financial aspects of the relationship was a significant factor that required further consideration.

Consequently, the Tribunal remitted the application for a Partner (Temporary) (Class UK) visa, Subclass 820, for reconsideration by the Minister. The Tribunal directed that the applicant met the criteria specified in clauses 820.211 and 820.221 of Schedule 2 to the Regulations, indicating that the primary focus of the remittal was to allow for a more comprehensive assessment of the remaining criteria, particularly in light of the financial aspects of the relationship.