Luthra (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Residence) (Class BS) visa, Subclass 801, made by an applicant seeking to establish a spousal relationship with an Australian citizen sponsor. The core dispute revolved around whether the applicant was the sponsor's spouse for the purposes of the *Migration Act 1958* (Cth) at the time of the decision.

The Tribunal was required to determine if the applicant and the sponsor were in a valid marriage and, if so, whether they met the criteria for a spousal relationship as defined by section 5F of the Act. This definition necessitates a mutual commitment to a shared life as husband and wife to the exclusion of all others, a genuine and continuing relationship, and that the couple live together or do not live separately and apart on a permanent basis. In assessing these matters, the Tribunal had to consider all circumstances of the relationship, including financial and social aspects, the nature of their household, and their commitment to each other, as outlined in regulation 1.15A(3) of the *Migration Regulations 1994* (Cth).

The Tribunal found that the parties were validly married on 31 October 2012, with a certified copy of their marriage certificate on file. While acknowledging the voluminous evidence submitted by the parties, including photographic evidence, details of holidays, communication frequency, length of relationship, joint bank accounts, and timelines of life events, the Tribunal also addressed an anonymous allegation that the marriage was a sham. The Tribunal gave limited weight to this allegation due to its anonymous nature, speculative content, and the potential for the source to have made the allegation based on suspicion rather than first-hand knowledge. The Tribunal also noted the detailed financial information provided, including joint ownership of assets, joint liabilities, pooling of financial resources, and sharing of household expenses, which supported the genuineness of the relationship.

Ultimately, the Tribunal remitted the application for reconsideration, directing that the applicant met the criteria for the Subclass 801 visa, specifically clause 801.221(2)(c) of Schedule 2 to the Regulations.