Gumber (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, subclass 820 (Spouse). The applicant claimed that their genuine spousal relationship with the visa sponsor had ceased and that they had been a victim of family violence. The decision under review was made by the Tribunal, presided over by Member Rosa Gagliardi.

The primary legal issues before the Tribunal were whether the applicant and the sponsor had been in a genuine and continuing spousal relationship at any point, and if so, whether the applicant had suffered relevant family violence. The Tribunal was required to assess these claims in accordance with the provisions of the Migration Act 1958 and the Migration Regulations 1994, particularly concerning the definition of a spousal relationship and the criteria for establishing family violence, including non-judicially determined claims.

The Tribunal reasoned that for a visa to be granted on the basis of family violence, the underlying relationship must have been genuine and continuing. Applying the principles from *Guven v MIMIA* [2006] FMCA 311, the Tribunal first considered the existence of a spousal relationship, defined by section 5F of the Act and regulation 1.15A(3), which requires marriage, mutual commitment, a genuine and continuing relationship, and cohabitation or not living separately and apart on a permanent basis. The Tribunal found that given the marriage date and the lack of probative information to the contrary, it was unreasonable to conclude the relationship had never been genuine. However, the Tribunal ultimately concluded that the applicant's claim of family violence had not been established, and as this was an essential criterion for the visa, the applicant did not meet the requirements for its grant.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Partner (Temporary) (Class UK) visa.