1723900 (Migration)

This matter concerned an application for a Partner (Migrant) (Class BC) visa by a Nigerian-born woman sponsored by an Australian citizen. The applicant and sponsor met in 2010, commenced a relationship later that year, and married in December 2011. The applicant lodged her visa application in April 2012, was granted a Subclass 309 visa in August 2014, and entered Australia in November 2014. The Department requested further information for the Subclass 100 application in November 2016, and additional information was provided subsequently, including statutory declarations, bank statements, and photographs. The Department also conducted a social media search and interviewed the applicant. The Tribunal affirmed the decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant and sponsor were in a genuine and continuing spousal relationship at the time of the decision, as required by clause 100.221 of the Migration Regulations 1994. This required the Tribunal to consider whether the parties were married to each other under a marriage valid for the purposes of the Act, demonstrated a mutual commitment to a shared life as a married couple to the exclusion of all others, and lived together or did not live separately and apart on a permanent basis, pursuant to section 5F(2) of the Migration Act 1958. In making this assessment, the Tribunal was required to have regard to all the circumstances of the relationship, including the financial, household, and social aspects, and the nature of the parties' commitment to each other, as outlined in regulation 1.15A(3).

The Tribunal accepted that the parties were validly married. However, it considered evidence suggesting the sponsor's past unfaithfulness and his relationship with another woman prior to and during the applicant's offshore period, including the existence of two children of undetermined paternity who bore the sponsor's surname and to whom the sponsor had acted as a father figure. While the sponsor provided a statement acknowledging past dishonesty, expressing regret, and asserting his commitment to the applicant, the Tribunal found that the evidence did not establish a genuine and continuing spousal relationship that met the requirements of the Act and Regulations. The Tribunal affirmed the decision not to grant the visa.