1828365 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant sought review of a decision that she did not meet the criteria for the visa. The core of the dispute revolved around whether the applicant and the sponsor were in a genuine and continuing spouse relationship at the time of the visa application and, subsequently, whether the cessation of that relationship was due to family violence committed by the sponsor.

The Tribunal was required to determine two primary legal issues. Firstly, whether the applicant and the sponsor were in a valid married relationship at the time the visa application was lodged, as defined by section 5F of the Migration Act 1958 (Cth) and Regulation 1.15A of the Migration Regulations 1994 (Cth). This involved assessing whether they were validly married, mutually committed to a shared life, the relationship was genuine and continuing, and they lived together. Secondly, if the relationship had ceased by the time of the decision, whether the applicant could still satisfy the visa requirements by demonstrating that the cessation was due to family violence committed by the sponsor, pursuant to subclause 820.221(3) of Schedule 2 to the Regulations.

The Tribunal found that the parties were validly married at the time of the application, satisfying section 5F(2)(a). Furthermore, considering the evidence presented, including the provided marriage certificate and the history of their relationship, the Tribunal was satisfied that the parties met the requirements of a spouse relationship under section 5F(2) at the time of the application. However, the Tribunal noted that the relationship had ceased by the time of the decision, with the applicant alleging family violence by the sponsor. The Tribunal concluded that the applicant satisfied subclause 820.221(3)(a) by demonstrating that the relationship had ceased, and that she would have continued to meet the requirements of subclause 820.211(2) but for this cessation. The Tribunal then considered the evidentiary requirements for establishing family violence under Regulation 1.24, noting the absence of court orders and the need for specific evidence to support the claim.

Ultimately, the Tribunal remitted the application for reconsideration. The direction was that the applicant met the criteria under subclause 820.211(2) at the time of application and that the provisions of subclause 820.221(3) were applicable, requiring further assessment of the family violence claim and its evidentiary support.