1836629 (Migration)

The Administrative Appeals Tribunal considered 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 concerned whether the applicant and the sponsor were in a genuine and continuing spouse relationship at the time of the visa application, and whether the applicant had suffered family violence committed by the sponsor.

The legal issues before the Tribunal were whether the applicant met the requirements of clause 820.211(1) and (2) of Schedule 2 to the Migration Regulations 1994, specifically regarding being the spouse of an Australian citizen at the time of application. Additionally, the Tribunal had to determine if the applicant had suffered family violence committed by the sponsor, as defined by the Regulations, and if this violence occurred during the relationship.

The Tribunal reasoned that evidence of events subsequent to the visa application could be relevant to establishing the status of the relationship at the time of application. It found that the applicant met the criteria under clause 820.211(1)(a) and (b), indicating she was not the holder of a Subclass 771 (Transit) visa and was the spouse of the sponsor at the time of application. The Tribunal also considered the definition of "spouse" under section 5F of the Act, which requires a valid marriage, mutual commitment, a genuine and continuing relationship, and cohabitation. Furthermore, the Tribunal found that the applicant's statutory declaration met the requirements of regulation 1.25, establishing a non-judicially determined claim of family violence.

Consequently, the Tribunal remitted the application for reconsideration. It directed that the applicant be found to meet the criteria under clause 820.211(1) and clause 820.221(3) of Schedule 2 to the Regulations.