Koh (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa by the applicant, a Malaysian national, sponsored by an Australian citizen. The applicant had been in Australia unlawfully for a significant period before lodging the visa application and had previously been granted a temporary partner visa. The core dispute revolved around whether the parties' relationship met the criteria for a genuine and continuing spouse or de facto relationship as required by the Migration Regulations 1994. The case was before the Administrative Appeals Tribunal (AAT) following a remittal from the Federal Circuit Court of Australia due to a previous failure to disclose relevant information protected by certificates.

The AAT was required to determine whether the applicant and sponsor were in a spouse or de facto relationship that satisfied subclause 801.221(c) of the Regulations. This involved assessing whether they were validly married, had a mutual commitment to a shared life to the exclusion of others, and whether their relationship was genuine and continuing, including whether they lived together or not separately and apart on a permanent basis. The Tribunal also had to consider all the circumstances of the relationship, including financial, household, and social aspects, as well as the nature of their commitment to each other, as outlined in regulation 1.15A(3).

The Tribunal considered the parties' claim of being validly married, noting that a marriage certificate had been provided. However, the parties later informed the Tribunal that they had divorced, stating this was due to financial and visa issues. The Tribunal had invited the applicant to comment on this new information and other adverse issues raised, including information disclosed from protected certificates, but the applicant failed to respond. Given the lack of response and the information that the parties were now divorced, the Tribunal found that the applicant had not satisfied the criteria for a genuine and continuing spouse relationship.

The Tribunal affirmed the decision not to grant the applicant a Partner (Residence) (Class BS) visa.