Unfortunately not all Partner Visa applications are approved. Even if your case is genuine and you have plenty of supporting evidence, there is still a chance that your application may be refused. Not all case officers are easy to deal with. Below you will find cases where the couple had to fight for their visa at Migration Review Tribunal as the Department of Immigration denied their application.
PARTNER (TEMPORARY) (CLASS UK) – SUBCLASS 820 (SPOUSE) – CL.820.211 – COMPELLING AND COMPASSIONATE CIRCUMSTANCES – A delegate of the Minister refused the visa application on the basis that the applicant did not satisfy cl.820.211(2)(a) of Schedule 2 to the Regulations, because she was not satisfied that the applicant and her sponsor had been in a de facto partner relationship for the 12 months immediately preceding the application under review, or that there were compassionate and compelling reasons to waive that requirement. The visa applicant, who was from France, came to Australia in March 2009 as the holder of a working holiday visa. The applicants claimed that they met in July 2009 at a town in western Queensland where the visa applicant was working at a hotel. They claimed that they began a relationship, and when the sponsor finished his work in the town, the visa applicant quit her job to accompany him to Toowoomba, where his employer was based. The applicants claimed that they stayed at the review applicant‟s employer‟s house from August 2009 until they found a place for themselves the following month.
The visa applicant claimed that when she and the review applicant first lived together, his previous partner was pregnant with his second child. She claimed that she was a step-mother to the two children, who are with her and the review applicant every second weekend and during holiday times, and that she had a close relationship with them. The review applicant claimed that if the application was refused, he would be unable to accompany the visa applicant overseas should it be necessary for her to leave Australia. He claimed that the visa applicant would apply again from overseas, but that their family life would be greatly disrupted if they were forcibly separated as he believed that both of his daughters would find it difficult to adapt to life without the visa applicant. The review applicant further claimed that he would experience financial hardship as he would find it very difficult to manage his maintenance obligations and their mortgage repayments on his income alone, and that he would also find it difficult to balance his responsibilities to his children and his work commitments if the visa applicant was not there to support him.
Held: Decision under review set aside.
The Tribunal was satisfied that the applicants had met in western Queensland in July 2009, and that they committed to a de facto relationship in September of that year. The Tribunal noted that considerable evidence as to the genuineness of the relationship had been provided at the time of the application, including statutory declarations provided by members of the review applicant‟s family, and corroborating evidence relating to their shared financial affairs. The Tribunal also noted that the review applicant had accompanied the visa applicant to France to meet her family and friends, and that they had planned for a wedding in the future at a time when the visa applicant‟s family would be able to travel to Australia. Accordingly, the Tribunal was satisfied that the applicants had been in a mutually exclusive relationship as de facto partners within the terms of the Regulations since September 2009. However, the Tribunal further noted that the application was made in August 2010, and it was therefore not satisfied that for the period of 12 months immediately preceding the date of the visa application that the applicant and the sponsor had a mutual commitment to a shared life to the exclusion of all others; that the relationship was genuine and continuing and that they had been living together or not been living separately and apart on a permanent basis.
PARTNER (CLASSES UK AND BS) – SUBCLASS 820 (TEMPORARY)(RESIDENCE) — CL.820.211 – DE FACTO RELATIONSHIP FOR 12 MONTHS – A delegate of the Minister refused to grant the visa on the basis that the applicant did not satisfy cl.820.211 of the Migration Regulations because the delegate was not satisfied the parties had been in a de facto relationship for the 12 months immediately preceding the making of the application. The applicant claimed to have met her partner in July 2008 and commenced a relationship with him in September 2008. They did not live together at the time of application due to their strong Catholic beliefs. In September 2011 a change in circumstances form was submitted to the department noting that their status had changed from engaged to married and the applicant now resided with her sponsor at his pre-existing address.
Held: Decision under review remitted.
The tribunal found all of the parties to be credible and forthcoming with information. The tribunal found that at the time of application for the visa, the applicant and sponsor were not married to each other under a marriage that was recognised as valid for the purposes of the Act. The tribunal acknowledged that the parties chose, for reasons relating to their religious beliefs, not to live together before they married. At the time of application, the tribunal accepted that they had known each other for about three years and were mutually committed to each other for 18 to 24 months prior to that. Having married in August 2011 and commenced cohabitation after that, they had lived together for over a year. Having regard to the all of the evidence, the tribunal was satisfied that at the time of application, the couple had a mutual commitment to a shared life to the exclusion of all others, as well as a genuine and continuing relationship. At the time of application, there was no shared household and therefore no shared household expenses. Nevertheless, the tribunal noted evidence of pooling of resources during this period including food shopping and going out, as well as the considerable expense of the applicant‟s tuition for a semester in 2009.
PARTNER (TEMPORARY) (CLASS UK) VISA – SUBCLASS 820 (PARTNER (TEMPORARY)) – CL.820.211(2)(D)(II) – SCHEDULE 3 WAIVER – COMPELLING REASONS – The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations. The delegate found that the applicant was unable to satisfy Schedule 3 criteria 3001, 3003 and 3004, and that there were no compelling reasons to waive the criteria. The applicant confirmed that she did not have a substantive visa at the time of application. The applicant claimed that she began a relationship with her sponsor in 2011 and that their plan was to marry in early 2014. She claimed that due to a number of complications, their marriage was brought forward and they were married in November 2013. The applicant claimed that her parents were Hindu and disapproved of her relationship with the sponsor for religious reasons. She claimed that her parents had disowned her, and that she had contact with her siblings, but limited contact with her mother and no contact with her father since they learned of her marriage.
Held: Decision under review remitted.
The tribunal found that the application for the visa was not made within 28 days of the relevant day and, as the applicant therefore did not satisfy criterion 3001, it was unnecessary to consider the remaining Schedule 3 criteria. The tribunal considered whether there were compelling reasons for waiving the criteria. The tribunal had regard to the applicant’s evidence regarding her parents’ reaction to her marriage and was satisfied that if the applicant returned to Nepal, in circumstances where she did not have the support of her family, she would face significant financial and emotional hardship as a result of her parents’ rejection. The tribunal also had regard to the resultant difficulty a woman faced in surviving alone in Nepal. The tribunal considered independent information regarding the status of women in Nepalese society and the significance of religion, particularly Hindu traditions, on the role of women. The tribunal was satisfied that the parents’ objection to her marriage and subsequent rejection of her, which existed when the application was made, were compelling reasons for not applying the Schedule 3 criteria. The tribunal accordingly waived the requirement to satisfy cl.820.211(2)(d)(ii) and remitted the case to the department for consideration of the remaining visa criteria.
PARTNER (PROVISIONAL) (CLASS UF) – SUBCLASS 309 (PARTNER (PROVISIONAL)) – CL.309.211 – GENUINE AND CONTINUING SPOUSE RELATIONSHIP – The delegate refused the visa on the basis that the applicants did not have a genuine and continuing spousal relationship and did not satisfy cl.309.211 of Schedule 2 to the Regulations. The applicants provided to the department limited evidence of their relationship. The delegate was not satisfied that the applicants had shared a household as claimed in Macedonia in 2012, or that there was evidence of their communication or that their relationship was recognised by their families. The applicants, who were both previously divorced, provided significantly more evidence to the tribunal, including several statements by family and friends, phone, Skype and Facebook records, and change of name notifications by the review applicant to various agencies. At hearing, the applicants gave consistent testimony of the history of their relationship, their current living circumstances, each other’s extended families and detailed plans to establish a joint household in Australia. They testified to the review applicant’s close relationships with the visa applicant’s son and other family members, and that each family had delayed other events until both applicants may attend.
Held: Decision under review remitted.
The tribunal accepted that the parties first met in Macedonia in July 2012, decided to marry in September 2012, that the review applicant returned and lived with the visa applicant for three months later that year, when they married, and again for two months in 2014. The tribunal accepted as plausible the review applicant’s explanation of getting married in the absence of her two children due to the travel expenses and their work commitments. The tribunal found that the parties represented themselves to their families, friends and the community as being married to each other, and that they have been in a committed relationship since September 2012, married since November 2012, and living together for around five months in Macedonia. Regarding the parties’ decision to marry around six weeks after first meeting, the tribunal was satisfied that they found they were highly compatible and had formed a strong bond very quickly. The tribunal placed some weight on the existence of a large loan the review applicant arranged to fund her latest visit to Macedonia, which indicated a strong emotional commitment to the relationship. The tribunal found the parties were aware of each other’s financial circumstances and health issues. Based on the evidence before it, the tribunal was satisfied that the applicants were in a spousal relationship and therefore found that they met the visa requirement in cl. 309.211. The tribunal remitted the case to the department for consideration of the remaining visa criteria.
PARTNER (TEMPORARY) (CLASS UK) VISA – SUBCLASS 820 (PARTNER (TEMPORARY)) – CL.820.211 – CL.820.221 – GENUINE SPOUSE RELATIONSHIP – The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.211 and cl.820.221 of Schedule 2 to the Regulations. The delegate was not satisfied that the applicant was the spouse of his sponsoring partner. The applicant and the sponsor claimed that they have been in a mutually committed relationship to the exclusion of all others since 2011. The applicant and the sponsor further claimed that they were married in 2013 when the sponsor turned 18.
Held: Decision under review remitted.
The tribunal found that the applicant and the sponsor gave consistent information as to where they lived, their household and financial arrangements, and their commitment to each other. The tribunal found that at the time of application and the time of decision, the parties were in a spousal relationship. The tribunal noted that the applicant had not held a substantive visa for more than 28 days at the time of his application 5 for a partner visa, and consequently the tribunal found that the applicant did not satisfy criterion 3001. However, the tribunal was satisfied there were compelling reasons for the waiver of the criteria which were that the parties had been in a genuine and continuing, long-standing relationship for over two years at the time of application. Accordingly, the tribunal found that the applicant met cl.820.211(2)(d)(ii) and t remitted the application to the department to consider the remaining criteria for the grant of the visa.
PROSPECTIVE MARRIAGE (TEMPORARY) (CLASS TO) – SUBCLASS 300 – CL.300.216 – GENUINE RELATIONSHIP – The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.300.216 of Schedule 2 to the Regulations. The delegate was not satisfied that the parties had sufficient knowledge of each other’s circumstances and consequently considered there was limited commitment to each other. Furthermore, the delegate was not satisfied that the parties genuinely intended to live together. The applicant claimed that he had met the sponsor initially through a friend when he was visiting Australia. The applicant claimed that once he left Australia he continued to contact the sponsor on a regular basis and that the relationship gradually developed. The applicant claimed that in 2011 he returned to Australia on a visitor visa and stayed with the sponsor and her family for seven weeks, but during this time the applicants did not cohabit. The applicant and sponsor claimed that they spoke to each other on the phone once or twice a week.
Held: Decision under review affirmed.
The tribunal found that the evidence of the sponsor was at times contradictory, such as whether or not the applicant had discussed with the sponsor that he had given up his employment and what kind of work he would do in Australia if the visa was granted. On the basis of the evidence presented, the tribunal found the sponsor and the applicant not to be credible. The tribunal considered the level of communication between the parties, who claimed that they spoke to each other on the phone regularly, did not display the level of knowledge and understanding of each other that would be expected from people who had been in a relationship since 2011 and were planning to marry. The tribunal was not satisfied that the parties had sufficient knowledge of each other and of each other’s daily lives to demonstrate that they were committed to each other and intended to live together in a spouse relationship in the future. The tribunal was also not satisfied that at the time of application the parties had a genuine intention to live together as spouses, and therefore did not meet the requirement of cl.300.216. Accordingly, the tribunal was not satisfied that the applicant met the criteria for the grant of the visa.
PROSPECTIVE MARRIAGE (TEMPORARY) (CLASS TO) – SUBCLASS 300 – CL.300.216 – CL.300.221 – CONTINUING INTENTION TO MARRY – The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.300.216 and cl.300.221 of Schedule 2 to the Regulations. The delegate was not satisfied that the parties genuinely intended to marry and or live together as spouses. The sponsor claimed that he and the applicant married in August 2012 after the department interview was conducted. They had married at the registry office in India, in the presence of relatives. The sponsor claimed that he did not inform the department of the marriage. The delegate had therefore made the decision to refuse the visa application without the knowledge of the marriage taking place.
Held: Decision under review affirmed.
The tribunal found that the sponsor and the applicant were married before the delegate had refused the visa. The tribunal accepted that the sponsor and the applicant were validly married for the purpose of the Act. The tribunal noted that the reason the parties had not advised the department of their marriage was they were worried that this information may cause further delay in processing the application. The tribunal found that the sponsor could not have had a continuing intention to marry the applicant during the visa period, as they had already married. Therefore, the tribunal found that the parties did not meet the relevant requirements for the grant of the visa. The tribunal suggested to the sponsor that he present evidence to support his claims relating to his ongoing and genuine spousal relationship with the applicant to the department for consideration of any other visa applications.
PARTNER (TEMPORARY) (CLASS UK) – SUBCLASS 820 (PARTNER) – GENUINE AND CONTINUING RELATIONSHIP – The delegate refused the visa on the basis the applicant and the sponsor were not in a genuine and continuing spouse relationship. The applicant entered Australia when granted a subclass 300 visa in 2010 on the basis of her relationship with her sponsor. The couple were married ten days after her arrival. The applicant’s subsequent subclass 820 visa application, the subject of this review, was accompanied by statements by friends who attested to the genuineness of the relationship. The couple also provided statements which indicated that although the sponsor had moved to Singapore for work commitments, they longed to be together and hoped to commence a family. They offered evidence of money transfers from the sponsor. The delegate relied on information obtained by departmental officers when they conducted a home visit in June 2011, which identified that the sponsor had not returned from Singapore since September 2010; that the applicant didn’t know the sponsor’s employer; that her belongings were in a bedroom used by another man and that none of the sponsor’s belongings were present. Department records indicated that the sponsor left Australia 3 days after their marriage and had not returned, and that the applicant had visited Singapore for 8 days and the Philippines on 3 other short visits since her marriage.
Held: Decision under review affirmed.
The tribunal found that the applicant and the sponsor had provided little evidence of shared assets or finances, and nothing that indicated they had established a household together, nor that they had lived together since 3 days after their marriage. Although the applicant provided statements from two friends claiming they had seen the couple together at social events, the tribunal noted they did not explain how this could have occurred while the sponsor was in Singapore. Based on information obtained by the department from a home visit, the tribunal found the applicant had little or no knowledge of aspects of the sponsor’s life. The applicant did not attend the tribunal hearing to explain her circumstances, nor did she provide the tribunal further evidence of her marriage. The tribunal found that there was no indication that the parties were in a genuine and continuing relationship based on the financial, social, practical or emotional support aspects of the relationship. Therefore the tribunal was not satisfied that the parties were in a spousal relationship and found that the applicant did not satisfy the criteria for the grant of the visa.
PARTNER (PROVISIONAL) (CLASS UF) – SUBCLASS 309 (PARTNER) – CL.309.211 – GENUINE SPOUSE RELATIONSHIP – The delegate refused to grant the visa on the basis that the parties were not in a genuine and continuing spouse relationship and did not meet the requirements of cl.309.211 of Schedule 2 of the Regulations. The parties claimed that they first met in October 2009 during a train trip in which they struck up a conversation. The parties claimed that they kept in contact following their meeting and that the review applicant proposed some months later to the visa applicant. The parties claimed that they had a traditional Vietnamese wedding ceremony when the review applicant visited Vietnam in August and September 2011. The parties claimed that following their marriage they opened a joint bank account together and the review applicant would regularly send money to the visa applicant. The parties also claimed that on the review applicant‟s trip to Vietnam in September 2012 they spent two weeks together. The review applicant claimed that he called the visa applicant twice a week and if the visa was granted his sister would be able to assist the visa applicant in finding a job in Australia.
Held: Decision under review affirmed.
The tribunal accepted that the parties were legally married, they had a joint bank account, various family members and friends had attested to their relationship, and there were photographs of the parties together in a variety of situations. Furthermore, the parties themselves had given evidence that they were in a genuine relationship. While the tribunal had no doubts that the parties were legally married and had provided documents addressing the various factors, it was not satisfied that this meant they had a mutual commitment to a shared life as husband and wife in accordance with s.5F of the Migration Act and r.1.15A of the Regulations. The tribunal was concerned with various discrepancies in the evidence regarding the inception of the parties‟ relationship that led the tribunal to question the genuineness of the relationship and the visa applicant‟s credibility in general. Given the inconsistent evidence, the tribunal was not prepared to accept the parties‟ evidence at face value about their commitment to the relationship. Accordingly the tribunal was not satisfied that the relationship between the parties was genuine and continuing and subsequently found the visa applicant did not satisfy the criteria for the grant of the visa.