2203501 (Migration)

This matter concerned an application for a Partner (Migrant) (Class BC) visa, Subclass 100. The applicant claimed to be the spouse of the sponsor and alleged family violence during the relationship. The Department had initially been unsatisfied with the genuineness of the spousal relationship but granted a provisional visa based on initial evidence. The dispute before the Tribunal was whether the applicant and sponsor were in a genuine and continuing spousal relationship prior to its cessation, particularly in light of allegations of family violence and a subsequent family violence restraining order that was withdrawn and replaced with a consent order without admission of guilt.

The Tribunal was required to determine the genuineness of the spousal relationship by considering various factors outlined in the Migration Regulations 1994, specifically subregulation 1.15A(3). These factors included the financial aspects of the relationship, the nature of the household, the social aspects, and the nature of the commitment to each other. The Tribunal also had to consider the impact of the alleged family violence and the subsequent legal proceedings on the assessment of the relationship's genuineness.

The Tribunal found that while the parties lived at the same address and presented some evidence of a spousal relationship, such as wedding photographs, there was a lack of evidence regarding the pooling of financial resources. The Tribunal noted the sponsor's FIFO work schedule meant periods of separation, and the applicant's financial dependence on the sponsor. Crucially, the Tribunal considered the evidence relating to the family violence restraining order, which was withdrawn and replaced by a consent order without an admission of guilt. Given the complexities and the evidence presented, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the application for a Partner (Migrant) (Class BC) visa for reconsideration, with a direction that the applicant meets specific criteria for a Subclass 100 (Partner) visa, namely cl 100.221(4)(b) and (c)(i) of Schedule 2 to the Regulations.