xxx (Migration)

This matter concerned an appeal by an applicant for a Partner (Temporary) (Class UK) visa, Subclass 820, against the delegate's decision to refuse the application. The applicant, a Sri Lankan national, was sponsored by an Australian citizen. The delegate had refused the application on the grounds that the applicant and sponsor were not in a genuine spouse relationship at the time of application or decision, and that there were no compelling reasons to waive Schedule 3 criteria.

The Tribunal was required to determine whether the applicant and sponsor were in a genuine and continuing spouse relationship, both at the time of the visa application and at the time of the Tribunal's decision. Additionally, the Tribunal needed to consider whether there were compelling reasons to waive the Schedule 3 criteria, which typically apply when an applicant does not hold a substantive visa at the time of application.

The Tribunal applied the definition of "spouse" under section 5F of the Migration Act 1958 (Cth), which requires a valid marriage, a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and cohabitation. The Tribunal considered all circumstances of the relationship, including financial, household, social aspects, and commitment to each other, as outlined in regulation 1.15A(3) of the Migration Regulations 1994. Crucially, the Tribunal accepted that evidence of subsequent events could be used to infer the existence of the relationship at the time of application. After reviewing substantial documentary and oral evidence, including evidence of joint finances, living arrangements, social activities, and support from friends and family, the Tribunal was satisfied that the applicant and sponsor were in a genuine spouse relationship at the time of the decision. The Tribunal also found that the evidence supported a finding that they were in a genuine spouse relationship at the time of application, despite initial concerns.

Consequently, the Tribunal remitted the application for the visa to the Minister with a direction that the applicant met the criteria for a Subclass 820 (Partner) visa concerning the genuine spouse relationship and the waiver of Schedule 3 criteria. The Minister was to consider the remaining criteria for the visa.