1730034 (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, subclass 801, where the applicant claimed the relationship with the sponsor had ceased and that she had been a victim of family violence. The Tribunal was required to determine whether the applicant met the criteria for the visa, particularly in relation to the existence of a genuine spousal relationship and the occurrence of family violence.

The central legal issues were whether the applicant's relationship with the sponsor was a genuine spousal relationship within the meaning of the Act, and if so, whether she had suffered relevant family violence. The Tribunal noted that for the purposes of the visa, even if the relationship had ceased, it must have been a genuine and continuing spousal relationship prior to its cessation, and that claims of family violence did not necessarily have to cause the cessation of the relationship. The Tribunal also considered the definition of a "spouse" under section 5F of the Act, which requires a married relationship, a mutual commitment to a shared life to the exclusion of others, and that the couple live together or not permanently apart.

The Tribunal reasoned that a genuine and continuing spousal relationship, as defined by case law, does not require notions of romance or being "in love," even if the marriage was arranged. It found that the applicant's initial perception of romantic attraction, as noted in a psychologist's report, was sufficient to satisfy the requirement of a genuine spousal relationship, despite the marriage being arranged and potentially lacking romantic love from the outset. The Tribunal applied the principles from *Guven v MIMIA* [2006] FMCA 311, which held that it was open to consider whether a spousal relationship existed at any point and then assess claims of domestic violence.

The Tribunal concluded that the applicant met the requirements of clauses 801.221(6)(b) and (c) of Schedule 2 to the Regulations, finding that the relationship had ceased and the applicant had suffered relevant family violence committed by the sponsor. Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that the applicant met these specific criteria.