1504544 (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, specifically a Subclass 801 visa. The applicant claimed to be the spouse of an Australian citizen sponsor. The central dispute before the Tribunal was whether the applicant and the sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others, and whether their relationship was genuine and continuing, as required by the Migration Regulations 1994.

The Tribunal was required to determine if the parties met the criteria for a spousal relationship under section 5F of the Migration Act 1958 and regulation 1.15A of the Migration Regulations 1994. This involved assessing whether the parties were validly married, and if so, whether they demonstrated a mutual commitment to a shared life, lived together or not separately and apart on a permanent basis, and whether the relationship was genuine and continuing. The assessment was to consider all circumstances of the relationship, including financial and social aspects, and the nature of their household and commitment to each other.

The Tribunal found that the parties were validly married on 16 June 2012, satisfying the requirement under section 5F(2)(a). However, the Tribunal noted that the evidence regarding the financial aspects of the relationship, specifically the use of a joint bank account with minimal activity, did not strongly support a genuine and continuing spousal relationship. Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that the applicant met the criteria under clause 801.221 of Schedule 2 to the Regulations.