1510384 (Migration)

This matter concerned an appeal by a visa applicant against a decision to refuse a Partner (Residence) (Class BS) visa. The applicant claimed to be the spouse of an Australian citizen who was the sponsoring partner. The core dispute revolved around whether the applicant continued to be sponsored by the sponsoring partner and whether they remained in a genuine and continuing spouse relationship.

The Tribunal was required to determine whether the applicant met the criteria for a Partner (Residence) (Class BS) visa, specifically whether they were the spouse of the sponsoring partner at the time of the decision, as stipulated by cl.801.221(2)(c) of the Migration Regulations 1994. This involved assessing if the parties were in a valid marriage and, crucially, if they continued to meet the requirements of a spousal relationship as defined by s.5F of the Migration Act 1958, including mutual commitment, a genuine and continuing relationship, and living together or not living separately and apart on a permanent basis.

The Tribunal considered the definition of "spouse" under s.5F of the Act, which requires a married relationship, a mutual commitment to a shared life, a genuine and continuing relationship, and cohabitation or not living separately and apart permanently. It noted that the parties were validly married on 2 November 2012. However, the sponsor had withdrawn her sponsorship on 11 November 2014, stating the relationship had broken down. While the applicant claimed a reconciliation, he failed to provide a statutory declaration from the sponsor to support this claim, and his own declaration indicated the relationship had ended in September 2014 and was only "on the mend." The Tribunal found that the applicant had not provided sufficient evidence to demonstrate a genuine and continuing spouse relationship at the time of the decision.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Partner (Residence) (Class BS) visa, finding that the applicant did not satisfy the relevant criteria for the visa.