Da Silva Araujo (Migration)

This matter concerned an appeal by an applicant for a Partner (Residence) (Class BS) visa, subclass 801, against a decision to affirm the refusal of her visa application. The applicant claimed that her relationship with the sponsor had ceased and that she had been a victim of family violence. The court was required to determine whether the applicant met the criteria for the visa, particularly in light of the cessation of the relationship and her claims of family violence.

The primary legal issue was whether the applicant could satisfy the requirements of subclause 801.221(6) of the Migration Regulations 1994. This subclause allows for the grant of a visa where the applicant's relationship with the sponsor has ceased, but the applicant would otherwise have met the criteria for the visa under subclause 801.221(2) or (2A), and has suffered family violence committed by the sponsor. The court had to consider whether a genuine partner relationship, as defined by the Act, had existed prior to the relationship's cessation, and if that relationship would have otherwise met the relevant criteria.

The court reasoned that for subclause 801.221(6) to be satisfied, there must have been a genuine and continuing partner relationship that would have met the requirements of subclause 801.221(2) or (2A) but for its cessation. This principle was supported by case law, including *Guven v MIMA* [2006] FMCA 311 and *Liu v MHA* [2019] FCA 1925, which established that a claim under this subclause cannot succeed if a genuine and continuing relationship never existed. The Tribunal accepted that the applicant was not the de facto partner of the sponsor at the time of the decision and that the relationship had broken down, meaning the applicant did not meet the criteria in cl 801.221(2)(c). The Tribunal found that the applicant's claims of family violence did not overcome the fundamental requirement that a genuine partner relationship must have existed prior to its cessation.

The Tribunal affirmed the decision not to grant the applicant a Partner (Residence) (Class BS) visa.