1802351 (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Residence) (Class BS) visa made by the applicant, who claimed to be the spouse of the sponsor, an Australian citizen. The core dispute revolved around whether the applicant met the definition of a spouse under section 5F of the Migration Act 1958 (Cth) at the time of the decision.

The Tribunal was required to determine if the applicant and the sponsor were in a married relationship, as defined by section 5F(2) of the Act. This definition necessitates that the parties are validly married, share a mutual commitment to a shared life as a married couple to the exclusion of all others, that their relationship is genuine and continuing, and that they live together or do not live separately and apart on a permanent basis. In assessing these criteria, the Tribunal had to consider all circumstances of the relationship, including the financial and social aspects, the nature of their household, and their commitment to each other, as outlined in regulation 1.15A(3) of the Migration Regulations 1994.

The Tribunal found that while the parties were validly married, the applicant did not meet the other requirements for a spouse relationship. The applicant had a child with another person, indicating the relationship was not exclusive. Furthermore, the evidence regarding the pooling of financial resources and the sharing of household expenses suggested a lack of the mutual commitment to a shared life as a married couple to the exclusion of all others. Consequently, the Tribunal affirmed the decision to refuse the visa.