1703152 (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa by a Jordanian national, who had entered Australia on a temporary visa and subsequently applied for both a Partner (Temporary) (Subclass 820) and a Partner (Residence) (Subclass 801) visa. The sponsor was an Australian citizen. The applicant and sponsor met in January 2012, committed to a shared life in February 2013, and married in April 2013. The applicant was granted the subclass 820 visa. The Department later received adverse information suggesting the relationship was contrived and that the applicant had paid the sponsor to marry him, as well as information regarding the sponsor's Centrelink payments. The applicant contended that the Department's notification of this adverse information was the catalyst for the breakdown of the relationship, and he subsequently claimed to have been subjected to family violence by the sponsor. The Tribunal was asked to review the decision not to grant the subclass 801 visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria for a Partner (Residence) (Class BS) visa, specifically whether he was in a spousal relationship with the sponsor at the time of the decision. This required the Tribunal to determine if the parties had a mutual commitment to a shared life as a married couple to the exclusion of all others, if their relationship was genuine and continuing, and if they lived together or not separately and apart on a permanent basis, as defined by section 5F of the Migration Act 1958. The Tribunal also considered the matters outlined in regulation 1.15A(3) of the Migration Regulations 1994, which include the financial and social aspects of the relationship, the nature of the household, and the parties' commitment to each other.

The Tribunal reasoned that while the parties were validly married, the evidence did not demonstrate they were in a genuine and continuing spousal relationship. Despite the marriage certificate being valid, the Tribunal found a lack of mutual commitment to a shared life, noting separate finances, living arrangements not indicative of a married relationship, and a lack of knowledge of each other's lives. The adverse information concerning Centrelink payments and the alleged contrived nature of the marriage, coupled with the applicant's claim that the relationship deteriorated after being informed of this information, contributed to the Tribunal's conclusion. The Tribunal also noted that the parties were no longer in a relationship and had last had contact in mid-2016.

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 criteria for the grant of the visa as he was not considered to be the spouse of the sponsor within the meaning of section 5F of the Act.