Haikin (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, subclass 820 (Spouse). The applicant claimed that their relationship with the visa sponsor had ceased and that they had been a victim of family violence. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for the visa, particularly in light of the cessation of the relationship and the allegations of family violence.

The primary legal issue before the Tribunal was to assess whether the applicant's relationship with the sponsor, which had ceased, would have otherwise met the requirements of the relevant legislation, specifically clause 820.221 of Schedule 2 to the Migration Regulations 1994. This involved determining if a genuine partner relationship existed at any point and if the applicant had suffered relevant family violence. The Tribunal also considered the definition of a "spouse" under section 5F of the Migration Act 1958, which requires a valid marriage, mutual commitment, a genuine and continuing relationship, and cohabitation or not living separately and apart on a permanent basis.

The Tribunal reasoned that, in accordance with the principles established in *Guven v MIMIA* [2006] FMCA 311, it was necessary to first assess whether the relationship between the applicant and the sponsor was a genuine spousal relationship within the meaning of the regulations, irrespective of the claims of family violence. The Tribunal found, based on the evidence presented, that the parties had entered into the relationship in good faith with the intention of a lifelong commitment, supported by their shared Jewish background and pre-marital counselling. Consequently, the Tribunal concluded that the applicant met the criteria under cl.820.221(3) of Schedule 2 to the Regulations, as the relationship had ceased and the applicant had suffered relevant family violence.

Given these findings, the Tribunal remitted the application for reconsideration by the Minister, with the direction that the applicant had met the specified criteria for the Subclass 820 visa. The Minister was to proceed to consider the remaining criteria for the grant of the visa.