1505940 (Migration)

This matter concerned an appeal by a visa applicant and her daughter against a decision to refuse their Partner (Residence) (Class BS) visa. The primary applicant, a citizen of Vietnam, had been granted a subclass 820 visa in August 2012. The sponsor was an Australian citizen. The core of the dispute revolved around whether the applicant and sponsor were in a genuine and continuing spousal relationship, and whether the applicant met Public Interest Criteria (PIC 4020) as required for the subclass 801 visa. Claims of family violence were also raised by the applicant.

The Tribunal was required to determine two primary legal issues: first, whether the applicant and sponsor were in a genuine and continuing spousal relationship at any point in time, and second, if so, whether the applicant had met the requirements for the grant of the visa, including any claims of family violence. The Tribunal noted that case law mandates an assessment of the genuineness of the relationship before considering claims of family violence.

The Tribunal affirmed the delegate's decision, finding that the applicant and sponsor were not in a genuine spousal relationship. Applying the principles outlined in *Nassouh v Minister for Immigration and Multicultural and Indigenous Affairs* (2000) FCA 788 and Regulation 1.15A of the *Migration Regulations 1994*, the Tribunal considered various aspects of the relationship, including financial, household, social, and commitment factors. The Tribunal concluded that the evidence did not satisfy the criteria for a genuine and continuing spousal relationship. Consequently, the Tribunal affirmed the decision not to grant the Partner (Residence) (Class BS) visas.