1421365 (Migration)

This matter came before the Tribunal concerning an application for a Partner (Migrant) (Class BC) visa. The applicant sought to establish a spousal relationship with the sponsor, who was an Australian citizen, permanent resident, or eligible New Zealand citizen. The core of the dispute revolved around whether the parties met the criteria for a genuine and continuing spousal relationship as defined by the Migration Act 1994 and the Migration Regulations 1994.

The Tribunal was required to determine whether the applicant and the sponsor were in a valid spousal relationship, specifically addressing the requirements of clause 100.221(2) and (2A) of Schedule 2 to the Regulations. This involved assessing whether the parties were married to each other under a marriage valid for the purposes of the Act, whether there was a mutual commitment to a shared life to the exclusion of all others, whether the relationship was genuine and continuing, and whether they lived together or did not live separately and apart on a permanent basis, as stipulated by section 5F(2) of the Act. The Tribunal also had to consider all the circumstances of the relationship, including financial, social, household, and commitment aspects, as outlined in regulation 1.15A(3).

The Tribunal found that the parties were validly married in Frankston on 3 December 2011, satisfying the requirement of section 5F(2)(a). While the delegate had initially made a "no evidence" decision due to difficulties in obtaining supporting documentation, the Tribunal, after granting an extension of time and receiving substantial documentary evidence from the applicants' new representative, was able to consider the matter more fully. Given the evidence presented, the Tribunal determined that the first named applicant met the criteria under clause 100.221(2)(b) of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the applications for Partner (Migrant) (Class BC) visas for reconsideration by the Minister, with the direction that the first named applicant meets the specified criteria for a Subclass 100 (Partner) visa.