Ji (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Residence) (Class BS) visa, Subclass 801 (Spouse). The applicant sought review of a decision concerning their eligibility for the permanent stage of the visa. The Tribunal was tasked with determining whether the relationship between the applicant and their sponsor met the relevant criteria at the time of the visa application.

The primary legal issue before the Tribunal was whether the applicant and sponsor were in a genuine and continuing spousal relationship at the time the visa application was made. This involved assessing whether the relationship met the requirements of regulation 1.15A(3) of the Migration Regulations 1994, and considering evidence that may have arisen after the date of the application to shed light on the nature of the relationship at that earlier time.

The Tribunal reasoned that while the relationship had ceased by the time of the Tribunal hearing, evidence of subsequent events could be considered if it logically demonstrated the existence or non-existence of the relationship at the time of the application. The Tribunal noted that the applicant had provided limited documentary evidence to the Department of Home Affairs but furnished further evidence to the Tribunal that was not available to the primary decision maker. Applying the principles from cases such as *Ally v MIAC* and *Jayasinghe v MIMA*, the Tribunal found that the applicant met criterion cl 801.221(2) of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the application for a Partner (Residence) (Class BS) visa for reconsideration. The Tribunal directed that the applicant be considered to have met the criteria for a Subclass 801 (Partner) visa, specifically cl 801.221(2). The decision also indicated that the second-named applicant, presumably the sponsor, would also be reconsidered in light of this direction.