Ma (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, subclass 801, by the first named applicant, who was married to the sponsor. The second named applicant, a child from the first applicant's previous marriage, was also involved. The primary dispute revolved around whether the relationship between the applicant and the sponsor continued to meet the definition of a "spouse" under section 5F of the Migration Act 1958 (Cth) and the relevant regulations, particularly in light of questioned paternity of a child born during the current marriage and the refusal of DNA testing. The decision was made by Christine Kannis, a Member of the Tribunal.

The legal issues before the Tribunal were whether the applicant and the sponsor were in a genuine and continuing spouse relationship, as required by clause 801.221(2)(c) of Schedule 2 to the Migration Regulations 1994, and whether the secondary applicant met the relevant criteria for the visa. Central to these issues was the interpretation of "spouse" under section 5F of the Act, which requires a valid marriage, a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and cohabitation. The Tribunal also had to consider the circumstances of the relationship as outlined in regulation 1.15A(3), encompassing financial, household, social aspects, and the nature of the commitment.

The Tribunal reasoned that while the parties were validly married, the refusal to undertake DNA testing to establish paternity, despite the Department's concerns, raised questions about the genuineness of the relationship. However, the Tribunal noted that it had significantly more documentation before it than the original delegate, including evidence of joint finances, living arrangements, and representations to government agencies as a family. Applying regulation 1.15A(3), the Tribunal considered the financial aspects, nature of the household, social aspects, and the nature of the commitment. Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the applications for Partner (Residence) (Class BS) visas for reconsideration. It directed that the first named applicant be considered to meet clause 801.221(2)(c) of Schedule 2 to the Regulations, and the secondary applicant be considered to meet clause 801.321(a)(ii) of Schedule 2 to the Regulations.