1819161 (Migration)

This matter concerned an appeal against a decision to affirm the refusal of a Partner (Migrant) (Class BC) visa, Subclass 100 (Partner). The applicant sought the visa based on their relationship with the sponsor. However, the Department had received advice that the relationship had ended prior to the primary decision. The applicant contended that unique or exceptional circumstances existed, warranting a referral to the Minister for intervention.

The Tribunal was required to determine whether the applicant met the criteria for the visa, specifically whether they were the spouse or de facto partner of the sponsor at the time of the decision, or if the relationship had ceased, whether unique or exceptional circumstances existed as provided for in the regulations. This involved assessing whether the parties were in a married or de facto relationship, considering the definitions of "spouse" and "de facto partner" under the Act, which require a mutual commitment to a shared life to the exclusion of all others, a genuine and continuing relationship, and cohabitation or not living separately and apart on a permanent basis.

The Tribunal found that the applicant had provided no documentary evidence to demonstrate the continuation of the relationship with the sponsor since the primary decision. The applicant also conceded these points during oral evidence. Consequently, the Tribunal was not satisfied that the applicant and sponsor were in a married or de facto relationship, nor that they had a mutual commitment to a shared life, a genuine and continuing relationship, or lived together. As the applicant did not meet the primary criteria and had not claimed or provided evidence for alternative criteria, the Tribunal affirmed the decision under review. The Tribunal also considered the applicant's submission for referral to the Minister under s.351 of the Act, noting the sponsor's pregnancy and potential lack of support, but ultimately affirmed the decision.