Ybarola (Migration)

This matter concerned an application for Partner (Temporary) (Class UK) visas, Subclass 820 (Partner), made by Ms. Ybarola and her two sons. The primary issue before the Tribunal was whether Ms. Ybarola was the spouse of the sponsor, Mr. Behan, as defined by section 5F of the Migration Act 1958 (Cth), at the time of the visa application. Mr. Behan was an Australian citizen.

The Tribunal was required to determine if the parties were in a genuine and continuing married relationship, considering all the circumstances. This involved assessing various aspects of their relationship, including financial pooling, joint care and support of children from previous marriages, their living arrangements, and their mutual commitment to a shared life as a married couple to the exclusion of all others, as outlined in regulation 1.15A(3) of the Migration Regulations 1994.

The Tribunal considered the evidence presented, including additional information provided after the Department of Immigration's initial decision. It noted that the definition of a spouse under section 5F(2) requires a valid marriage, a mutual commitment to a shared life, a genuine and continuing relationship, and that the couple live together or not separately and apart on a permanent basis. The Tribunal also had regard to the specific matters set out in regulation 1.15A(3), which encompass financial, household, social, and commitment aspects of the relationship.

Ultimately, the Tribunal remitted the applications for Partner (Temporary) (Class UK) visas for reconsideration. The direction was that the primary applicant, Ms. Ybarola, met the criteria for a Subclass 820 (Partner) visa, and the secondary applicants were to be reconsidered in light of this finding.