Kuo (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa (Subclass 801). The applicant had previously been granted a Subclass 820 visa. The Department had made a decision to refuse the Subclass 801 visa on the basis that the criteria were not met, following a lack of response to requests for further information. The applicant sought review of this decision before the Tribunal.

The Tribunal was required to determine whether the applicant met the criteria for a Subclass 801 visa, specifically whether the applicant was the spouse of the sponsoring partner, as defined by section 5F of the Migration Act 1958 (Cth) and Regulation 1.15A of the Migration Regulations 1994 (Cth). This involved assessing whether the parties were in a married relationship, characterised by mutual commitment, genuineness, continuity, and cohabitation, considering all circumstances including financial, household, social aspects, and commitment to each other.

The Tribunal found that the parties were validly married, satisfying the requirement under section 5F(2)(a). However, due to the lack of response to the Department's requests for information, the Tribunal concluded that the delegate had not been able to fully consider all the circumstances of the relationship as required by Regulation 1.15A(2) and (3). Therefore, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria under clause 801.221 of Schedule 2 to the Regulations.