JUAN (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, Subclass 801, by an applicant who held a Subclass 820 visa. The applicant claimed to be the spouse of the sponsor, an Australian citizen. The Tribunal was required to determine whether the applicant met the criteria for the visa, specifically whether the parties were in a genuine and continuing spouse relationship at the time of the decision.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 801.221(2)(c) of Schedule 2 to the Migration Regulations 1994, which requires the applicant to be the spouse of the sponsoring partner at the time of the decision. This involved assessing whether the parties met the definition of a "married relationship" as defined in section 5F of the Migration Act 1958, which includes being validly married, having a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and living together or not living separately and apart on a permanent basis. The Tribunal was directed to consider all circumstances of the relationship, including financial and social aspects, the nature of the household, and the commitment to each other, as outlined in regulation 1.15A(3).

The Tribunal found that the parties were validly married, satisfying section 5F(2)(a). However, the Tribunal noted that the evidence regarding the financial aspects of the relationship, such as the extent of financial integration and knowledge of each other's transactions, and the nature of the household and social aspects, required further consideration. Consequently, the Tribunal concluded that the application should be remitted for reconsideration by the Minister to assess the remaining criteria for the Subclass 801 visa.