Dao (Migration)

This matter concerned a review by the Administrative Appeals Tribunal of a decision by the Department of Home Affairs to affirm a refusal of a Partner (Residence) (Class BS) subclass 801 visa. The applicant, who was seeking the visa on the basis of his relationship with his sponsor, had advised the Department that the relationship had ceased and that he had suffered family violence perpetrated by the sponsor.

The primary legal issue before the Tribunal was whether the applicant met the criteria for the partner visa, particularly in light of the breakdown of the relationship and his claim of family violence. The Tribunal was required to consider the limited circumstances under the *Migration Act 1958* (Cth) and associated regulations in which a partner visa application could still be considered following a relationship breakdown, and specifically, whether the applicant could establish that he was the spouse of the sponsor as defined by the Act and meet the relevant regulatory requirements for a family violence claim.

The Tribunal reasoned that it could only consider the applicant's claim of family violence if he first satisfied the Tribunal that he was the spouse of his sponsor as defined under section 5F of the *Migration Act 1958* (Cth) and had regard to the circumstances required under regulation 1.15A. The Tribunal noted that the Department had applied certificates under sections 376 and 375A of the Act, which it considered valid. The Tribunal formally put to the applicant adverse information, including the particulars of a Departmental site visit that concluded the relationship was not genuine, and claims that the applicant had entered into a contrived relationship for migration purposes while living with another girlfriend. Although the applicant's agent made post-hearing submissions and provided attachments, the Tribunal found no evidence to support a finding that the applicant met any of the alternative criteria available under the Act in his circumstances.

The Tribunal affirmed the decision under review.