1714412 (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, Subclass 801. The applicant sought to establish that they were the victim of family violence committed by their sponsor, notwithstanding that the spousal relationship had ceased and the parties had divorced. The Tribunal was required to determine whether the applicant and sponsor had been in a genuine and continuing relationship, and if so, whether the applicant was a victim of family violence as defined by the Regulations.

The Tribunal considered the definition of a "spouse" under section 5F of the Migration Act 1958 (Cth), which requires a married relationship, a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and that the couple live together or not separately and apart on a permanent basis. The Tribunal also had regard to Regulation 1.15A(3) of the Migration Regulations 1994, which outlines specific matters to be considered when assessing a spousal relationship, including financial, household, social aspects, and the nature of the commitment to each other. The Tribunal was satisfied that the parties were validly married.

The Tribunal concluded that the matter should be remitted for reconsideration. The direction was that the applicant meets the criteria under cl.801.221(6)(b) and (c) of Schedule 2 to the Regulations, indicating that the Tribunal found sufficient grounds to proceed with the assessment of the family violence claim. The application was remitted to the Minister for reconsideration of the remaining criteria for a Subclass 801 visa.