DO (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, Subclass 801. The applicant sought to establish that they were in a genuine spousal relationship with the sponsor, who was an Australian citizen. The Tribunal was required to determine whether the applicant met the criteria for the visa, specifically whether they were the spouse of the sponsoring partner as defined by the Act.

The central legal issue before the Tribunal was whether the applicant and sponsor were in a married relationship that satisfied the requirements of section 5F of the Migration Act 1958 (Cth). This involved assessing whether the parties were married to each other under a valid marriage, whether they had a mutual commitment to a shared life as a married couple to the exclusion of all others, whether the relationship was genuine and continuing, and whether they lived together or not separately and apart on a permanent basis. The Tribunal was directed to consider all circumstances of the relationship, including financial and social aspects, and the nature of their household, as outlined in regulation 1.15A(3) of the Migration Regulations 1994.

The Tribunal found that the parties were validly married, as evidenced by a marriage certificate. However, the Tribunal did not make a final determination on the other criteria for a spousal relationship, such as the extent of joint finances, shared household responsibilities, social representation, and mutual commitment. Instead, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that the applicant met criterion cl.801.221(2)(c) of Schedule 2 to the Regulations, and that the second named visa applicant met criterion cl.801.311 to the Regulations.