Li (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa by an applicant who claimed to have been married to an Australian citizen. The applicant alleged that the relationship had ended due to domestic violence perpetrated by his sponsor, who had subsequently withdrawn her sponsorship and claimed the marriage was contrived. The case came before the Tribunal for review.

The Tribunal was required to determine two primary legal issues: first, whether the applicant was in a genuine spousal relationship at the time of making the visa application, and second, whether the applicant could satisfy the 'time of decision' criteria due to having suffered domestic violence from the sponsoring partner. The definition of a 'spouse' under section 5F of the Migration Act 1958 (Cth) and the considerations outlined in regulation 1.15A of the Migration Regulations 1994 were central to these determinations.

The Tribunal found that the parties were validly married, satisfying the requirement under section 5F(2)(a) of the Act. However, the Tribunal concluded that the matter should be remitted for reconsideration by the Minister, directing that the applicant met the criteria under clauses 820.211(2)(a) and 820.221 of Schedule 2 to the Regulations, and that the second applicant met clause 820.321. This indicated that while the validity of the marriage was established, further consideration of the remaining criteria was necessary.