Javed (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, before the Administrative Appeals Tribunal. The applicant had lodged the visa application on 30 August 2013, asserting a spousal relationship with the sponsor, an Australian citizen. However, prior to a decision being made by the Department, the applicant informed them that the relationship had ceased and that the applicant had experienced family violence perpetrated by the sponsor. The Tribunal was required to consider the evidence presented, including statutory declarations, affidavits, and oral evidence from the applicant, in light of the relevant legislative criteria.

The primary legal issues before the Tribunal were whether the applicant and sponsor were in a genuine and continuing spousal relationship at the time of the visa application and at the time of the decision, as required by clauses 820.211(2)(a) and 820.221 of Schedule 2 to the Migration Regulations 1994. Crucially, the Tribunal also had to determine whether the applicant had suffered family violence perpetrated by the sponsor, a claim that was central to the applicant's case and had been the subject of previous Federal Court proceedings. The definition of "spouse" under section 5F of the Migration Act 1958, which requires a valid marriage, mutual commitment, a genuine and continuing relationship, and cohabitation, was a key consideration.

The Tribunal found the applicant's oral evidence to be plausible and credible, accepting it as consistent with the documentary evidence and statements provided. The Tribunal was satisfied that the applicant was a credible witness and accepted his account of the relationship's history, the sponsor's family background, and the breakdown of the relationship. The Tribunal noted that the prior existence of a relationship was a precondition to assessing family violence. Having considered the evidence and the legislative requirements, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the criteria specified in clauses 820.211(2) and 820.221(3) of Schedule 2 to the Regulations. This direction implies that the Tribunal was satisfied on these specific criteria, allowing the Minister to consider the remaining criteria for the visa.