1916147 (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, Subclass 801. The applicant sought review of a decision that found they were not spouses at the time of the delegate's decision, partly due to concerns about their cohabitation in 2019. The applicant later notified the Tribunal that the relationship had broken down in May 2019 and claimed to have suffered family violence perpetrated by the sponsor. The Tribunal was therefore required to determine whether the applicant and sponsor were in a married relationship that had ceased, and if so, whether the applicant had suffered family violence committed by the sponsoring partner while the relationship was continuing.

The Tribunal considered the various aspects of the relationship, including financial, household, and social elements, as well as the nature of the commitment between the applicant and sponsor, in accordance with Regulation 1.15A of the Migration Regulations 1994. Evidence presented included witness statements, medical reports concerning the sponsor's health, a marriage certificate, photos, and statements from both the applicant and sponsor detailing their meeting, marriage, and the challenges they faced, including miscarriages and the sponsor's inability to work due to injury. The Tribunal noted that the relationship did not follow a conventional path, with periods of living separately from 2016 onwards, but found that the legislation does not mandate unbroken cohabitation. The Tribunal was satisfied that the applicant and sponsor were in a married relationship from March 2014 until at least December 2015, and that the relationship continued until approximately May 2019, despite frequent separations and reconciliations. Allegations of identity fraud and assault against a third party were deemed irrelevant and given no weight as they related to a period after the cessation of the spousal relationship.

The Tribunal concluded that the applicant was the spouse of the sponsor after their marriage and that this spousal relationship continued until it ceased around April or May 2019. The Tribunal remitted the application for reconsideration with a direction that the applicant meets the criteria for a Subclass 801 Partner visa, specifically referencing clauses 801.221(6)(b) and (c) of Schedule 2 to the Regulations, which relate to the cessation of the relationship and the occurrence of family violence.