1513994 (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Residence) (Class BS) visa, Subclass 801 (Spouse). The applicant sought review of a decision concerning her eligibility for the visa, claiming the relationship with the sponsoring partner, Mr. A, had ceased and that she had been a victim of family violence. The core dispute revolved around whether the applicant met the criteria under cl.801.221(6)(b) and (c) of Schedule 2 to the Migration Regulations 1994 (Cth), which require the applicant to have been in a spousal relationship with the sponsor, and for that relationship to have ceased due to family violence.

The Tribunal was required to determine if the applicant was the spouse of the sponsoring partner at the relevant time and, if so, whether the relationship had ceased due to family violence. This involved assessing the existence of a spousal relationship by considering the financial, household, social, and commitment aspects, as outlined in reg.1.15A(3) of the Regulations. A further issue arose concerning a certificate issued under s.376 of the Migration Act 1958 (Cth) by the Department, which sought to prevent disclosure of Mr. A's movement records on public interest grounds.

The Tribunal found that the parties were validly married in July 2012, satisfying the initial requirement for a spousal relationship. Regarding the s.376 certificate, the Tribunal concluded it was invalid as it lacked a proper basis for claiming privilege. The Tribunal noted that Mr. A's movement records, even if considered, showed him departing and returning to Australia in October 2014, with the applicant's movement records mirroring these dates. This evidence suggested the parties travelled together, potentially supporting the existence of a spousal relationship at that time, and therefore did not negatively impact the applicant's case. The Tribunal decided to remit the decision for reconsideration.