ACOSTA (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, Subclass 801, made by Ms Acosta. The dispute centred on whether Ms Acosta and her sponsor, Mr Hoyer, were in a genuine and continuing spousal relationship, as required by the Migration Regulations 1994. The decision was made by Senior Member James Lambie of the Tribunal.

The Tribunal was required to determine if the parties met the criteria for a spouse relationship under section 5F of the Migration Act 1958 and regulation 1.15A of the Migration Regulations 1994. Specifically, the Tribunal needed to assess whether the parties were married to each other under a valid marriage, whether there was a mutual commitment to a shared life to the exclusion of others, if the relationship was genuine and continuing, and if they lived together or not separately and apart on a permanent basis. This assessment necessitated considering the financial and social aspects of the relationship, as well as the nature of their household and commitment to each other.

The Tribunal found that the parties were validly married, having produced a Queensland marriage certificate. It also noted their history, including meeting online, Mr Hoyer's travel to the Philippines, Ms Acosta's arrival in Australia, their commencement of a de facto relationship, obtaining a registered relationship certificate, and their subsequent marriage. They shared a residence and Mr Hoyer's son. However, the Tribunal concluded that insufficient evidence had been presented to the delegate regarding the genuineness and continuation of the relationship. Consequently, the Tribunal remitted the application for reconsideration, directing that the applicant met the criteria under clause 801.221 of Schedule 2 to the Regulations.