1922326 (Migration)

This matter concerned an application for review of a decision to refuse a Partner (Migrant) (Class BC) visa, Subclass 100 (Spouse). The applicant claimed that the relationship with the sponsoring partner had ceased due to family violence, and sought to rely on specific criteria under cl.100.221(4) of the Migration Regulations 1994. The Tribunal was required to determine whether a genuine spousal relationship existed between the applicant and the sponsor at the relevant times, and whether the applicant met the criteria for claiming family violence exceptions to the relationship cessation.

The Tribunal considered the legal issue of whether the relationship between the applicant and the sponsor met the definition of a spousal relationship under s.5F(2) of the Migration Act 1958, particularly the requirement of a mutual commitment to a shared life to the exclusion of all others. It also examined whether the applicant satisfied the conditions under cl.100.221(4), which requires the relationship to have ceased due to family violence committed by the sponsor after the applicant first entered Australia on a Subclass 309 visa. The Tribunal noted that COVID-19 concessions were not applicable in this case.

The Tribunal reasoned that based on the applicant's own evidence, the relationship ceased to meet the definition of a spousal relationship from January 2018, due to the sponsor's infidelity and other conduct. As the applicant did not enter Australia on the Subclass 309 visa until February 2018, the relationship had already ceased to meet the required definition at that point. Consequently, the Tribunal found that the applicant could not satisfy the criteria under cl.100.221(4)(c) as any alleged family violence occurred after the relationship had already ceased to be a spousal relationship. The Tribunal affirmed the decision under review.