1905961 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant sought review of a decision that found she did not meet the criteria for the visa. The dispute centred on whether the applicant and the sponsor were in a genuine and continuing spouse or de facto relationship at the time of the visa application, and whether the applicant had suffered family violence.

The Tribunal was required to determine if the applicant met the requirements of clause 820.211(1) of the Migration Regulations 1994, specifically whether she was not the holder of a Subclass 771 (Transit) visa and met one of the alternate requirements set out in subclauses (2), (5), (6), (7), (8) or (9). The key issue was whether the applicant was the spouse or de facto partner of the sponsor at the time of application, as defined by section 5F of the Migration Act 1958, which requires a married relationship, mutual commitment, a genuine and continuing relationship, and cohabitation or not living separately and apart on a permanent basis. Additionally, the Tribunal had to consider whether the applicant had suffered family violence, as defined in regulation 1.21 and considered under regulation 1.23, which allows for a non-judicially determined claim of family violence if supported by appropriate evidence.

The Tribunal found that the applicant met the time of application requirements under clause 820.211(2), being satisfied that she was the spouse of the sponsor at the time of application. The Tribunal also considered evidence of events subsequent to the visa application, including pooled financial resources, shared household expenses, joint utility accounts, positive relationships with each other’s children and parents, a residential tenancy agreement, and joint travel and holidays, which logically tended to show the existence of a genuine relationship. Crucially, the Tribunal was satisfied that the applicant had suffered family violence committed by the sponsor during the relationship, based on her statutory declaration, the credible oral and documentary evidence of a neighbour, and the evidence of other individuals and professionals.

The Tribunal concluded that the applicant met the requirements of clause 820.211(1)(a) and (b), and therefore clause 820.211(1) was met. As the applicant met the time of application requirements and had suffered family violence, the Tribunal remitted the matter for reconsideration.