KARAHODZIC (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa (subclass 820) by the applicant, who claimed to be the spouse of an Australian citizen sponsor. The Administrative Appeals Tribunal was required to review the decision to refuse the visa. The applicant had initially provided evidence of her relationship, including a marriage certificate, statutory declarations, photographs, a joint bank statement, a residential tenancy agreement, and a letter.

The primary legal issue before the Tribunal was whether the applicant met the criteria for the visa, specifically whether she was the spouse of the sponsor as defined by the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth). This involved determining if a genuine and continuing spousal relationship existed at the time of the application and at the time of the decision, and considering any applicable exceptions to the visa requirements, such as claims of family violence.

The Tribunal considered the applicant's oral evidence at the review hearing, where she confirmed that her relationship with the sponsor had ceased. The Tribunal also noted advice from the applicant's migration agent that the relationship had broken down and that the applicant and her daughter had suffered family violence. Based on this evidence, the Tribunal concluded that the relationship had ceased at the time of the decision, meaning the applicant could not satisfy the requirement of being the spouse of the sponsor under cl.820.221(1)(a) of the Regulations. The Tribunal then invited the applicant to claim any exceptions, and she made a claim of family violence. However, the Tribunal was required to be satisfied that the applicant had been in a genuine and continuing relationship prior to the cessation of the relationship, and that the relationship would have continued but for the family violence.

The Tribunal affirmed the decision not to grant the visa. The Tribunal found that the applicant could not meet the criteria for a Partner visa because the spousal relationship had ceased. While a claim of family violence was made, the Tribunal's assessment indicated that the applicant did not satisfy the necessary conditions for this exception, particularly regarding the existence of a genuine and continuing relationship prior to the breakdown.