1612315 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by an applicant who claimed their relationship with the sponsor had ceased and that they were a victim of family violence. The Tribunal was required to determine whether the applicant was in a spousal relationship with the sponsor at the time of the visa application and whether the applicant could avail herself of the family violence exception to the requirement of maintaining the spousal relationship at the time of the decision.

The legal issues before the Tribunal were twofold: first, whether the parties were in a valid spousal or de facto relationship at the time the visa application was made, as required by clause 820.211(2)(a) of Schedule 2 to the Migration Regulations 1994. Second, if the relationship had ceased, whether the applicant could rely on the family violence exception, which, for applications made on or after 9 November 2009, requires the family violence to have occurred while the spousal relationship was still in existence, as stipulated by subregulations 1.23(3), (5), (7), and (12).

The Tribunal considered the definition of "spouse" under section 5F of the Migration Act 1958, which requires a valid marriage, mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and cohabitation or not living separately and apart on a permanent basis. The Tribunal was satisfied that the parties were validly married in Queensland on 25 November 2015, thus meeting the requirement of being in a married relationship. However, the Tribunal noted that the applicant had provided limited documentary evidence to the Department of Immigration and more extensive evidence to the Tribunal, and that later events could logically show the existence of prior facts, referencing the principles in *Jayasinghe v MIMA* [2006] FCA 1700.

Given these findings, the Tribunal remitted the application for a Partner (Temporary) (Class UK) visa for reconsideration by the Minister, with the direction that the applicant met the criteria under clauses 820.211(2) and 820.221(3) of Schedule 2 to the Regulations.