1701509 (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, subclass 801 (Spouse), by an applicant who claimed the relationship with his sponsoring partner had ceased due to family violence. The applicant sought to satisfy the criteria under cl.801.221(6) of Schedule 2 to the Migration Regulations 1994, which allows for the grant of the visa if the applicant would otherwise meet the requirements but for the cessation of the relationship and suffering family violence from the sponsoring partner. The decision was made by Kate Millar, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had established that he was in a spouse relationship with his sponsoring partner, Ms A, as defined by s.5F of the Migration Act 1958. This definition requires that persons be married to each other under a valid marriage, have a mutual commitment to a shared life to the exclusion of all others, maintain a genuine and continuing relationship, and live together or not live separately and apart on a permanent basis. The Tribunal also had to consider the factors outlined in r.1.15A(3) of the Regulations, including the financial and social aspects of the relationship and the parties' commitment to each other.

The Tribunal found that while the applicant and Ms A were validly married in Australia, the evidence did not satisfy the requirements of a spouse relationship as defined in s.5F of the Act. Specifically, the Tribunal was not satisfied that the parties had a mutual commitment to a shared life to the exclusion of all others, that the relationship was genuine and continuing, or that they lived together or did not live separately and apart on a permanent basis, after considering the various factors including financial aspects. Consequently, the applicant did not meet the essential criterion under cl.801.221(6). As the applicant failed to establish he was in a spouse relationship, the Tribunal did not need to consider the claims of family violence.

The Tribunal affirmed the decision not to grant the applicant a Partner (Residence) (Class BS) visa, subclass 801, on the basis that he had not met the essential criteria for the visa.