BAN (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, subclass 801. The applicant sought to establish that they were the spouse of the sponsor, an Australian citizen, as defined by section 5F of the *Migration Act 1958* (Cth). The Tribunal was required to determine whether the applicant met the criteria for a spousal relationship under the Act, considering all aspects of their relationship.

The central legal issue before the Tribunal was whether the applicant was the spouse of the sponsor, as defined in section 5F of the *Migration Act 1958*. This definition requires that the parties be married to each other under a marriage valid for the purposes of the Act, demonstrate a mutual commitment to a shared life as a married couple to the exclusion of all others, that the relationship be genuine and continuing, and that the couple live together or not live separately and apart on a permanent basis. The Tribunal also had regard to regulation 1.15A(3) of the *Migration Regulations 1994*, which outlines specific matters to consider, including financial aspects, the nature of the household, social aspects, and the nature of the commitment to each other.

The Tribunal found that the parties were validly married for the purposes of the Act. However, the Tribunal noted that inconsistent information had been provided regarding various aspects of the relationship, including property ownership, financial obligations, and living arrangements. Due to these inconsistencies and the need for further clarification, the Tribunal invited the parties to provide DNA evidence regarding their daughter and granted additional time to submit further information about their relationship.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria specified in cl.801.221(2)(c) and cl.801.221 of Schedule 2 to the Regulations.