DUNU (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, subclass 801, by an applicant claiming to be the spouse of an Australian citizen. The Tribunal was required to determine whether the couple were currently in a genuine spousal relationship as defined by section 5F of the Migration Act 1958 (Cth). The applicants relied on evidence provided to the Department and the Tribunal, including oral testimony given at a hearing.

The primary legal issue before the Tribunal was whether the parties met the criteria for a genuine and continuing spousal relationship under section 5F of the Act and regulation 1.15A of the Migration Regulations 1994. This involved assessing whether the parties were validly married, whether they had a mutual commitment to a shared life to the exclusion of all others, and whether they lived together or did not live separately and apart on a permanent basis. The Tribunal was directed to consider all circumstances of the relationship, including financial, household, and social aspects, as well as the nature of their commitment to each other.

The Tribunal found that the parties were validly married, satisfying section 5F(2)(a) of the Act. The evidence presented, including oral testimony, was found to be open and honest. However, the Tribunal did not make definitive findings on all the remaining criteria for a genuine and continuing spousal relationship, such as the financial, household, and social aspects, and the nature of their commitment. The Tribunal noted that substantial time apart due to family obligations was a factor to be considered within the broader assessment of the relationship's genuineness and continuation.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria under clause 801.221 of Schedule 2 to the Regulations. This indicated that while the validity of the marriage was established, further assessment was required regarding the other elements of a genuine and continuing spousal relationship.