Leiloa Manoa (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, subclass 801. The applicant sought to establish that they were the spouse of the sponsoring partner, who was an Australian citizen. The Tribunal was required to determine whether the parties were in a married relationship that satisfied the criteria set out in the Migration Act 1994 and the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant and the sponsor met the definition of a "spouse" as defined in section 5F of the Act. This definition requires that the parties be married to each other under a marriage valid for the purposes of the Act, have a mutual commitment to a shared life as a married couple to the exclusion of others, that the relationship be genuine and continuing, and that they live together or not separately and apart on a permanent basis. The Tribunal also had regard to regulation 1.15A(3) of the Migration Regulations 1994, which outlines specific matters to be considered when assessing the circumstances of a relationship, including financial and social aspects, and the nature of the household and commitment to each other.

The Tribunal found that the parties were validly married in Samoa on 23 December 2010, satisfying section 5F(2)(a) of the Act. However, the Tribunal noted that the parties had provided limited evidence regarding other aspects of their relationship. While they were joint residential tenants and had provided joint bank statements, these did not demonstrate a significant pooling of financial resources or joint assets and liabilities. The Tribunal also considered the applicant's employment and income, and the sponsor's role as a full-time carer for the parties' children, who were financially reliant on the applicant. The Tribunal concluded that insufficient evidence had been presented to satisfy all the requirements of a genuine and continuing married relationship under section 5F(2)(b), (c), and (d).

Consequently, the Tribunal remitted the application for reconsideration. The direction was that the applicant met the criterion specified in clause 801.221(2)(c) of Schedule 2 to the Regulations, but further consideration was required for the remaining criteria for the Subclass 801 visa.