1913724 (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, subclass 801. The applicant sought review of a decision concerning their eligibility for the visa. The core of the dispute revolved around whether the applicant and their sponsor were in a genuine and continuing spousal relationship, particularly in light of the relationship having ceased due to the applicant being a victim of family violence, evidenced by a Family Violence Final Intervention Order. The decision was made by the Tribunal.

The legal issues before the Tribunal were whether the parties were in a valid spousal relationship for the purposes of the Act, and if not, whether the applicant met the criteria for the visa under specific provisions relating to family violence. The Tribunal was required to consider the definition of a "spouse" under section 5F of the Migration Act 1958 (Cth), which necessitates a married relationship, a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and cohabitation or not living separately and apart on a permanent basis. Furthermore, the Tribunal had to assess all circumstances of the relationship, including financial, social, household, and commitment aspects, as outlined in regulation 1.15A(3) of the Migration Regulations 1994.

The Tribunal found that the parties were validly married. While acknowledging concerns raised by the original delegate regarding the parties' cohabitation, the Tribunal was satisfied by the applicant's detailed explanation and supporting evidence, including photographs and documents indicating a shared address. The Tribunal also considered the evidence relating to the financial and social aspects of the relationship. Crucially, the Tribunal determined that as the relationship had ceased and the applicant had suffered family violence, the applicant met the requirements of clauses 801.221(6)(b) and (c) of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the application for a Partner (Residence) (Class BS) visa for reconsideration. The remittal was accompanied by a direction that the applicant met the criteria specified in clauses 801.221(6)(b) and (c) of Schedule 2 to the Regulations, leaving the remaining criteria for the Minister to consider.