Mistry (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, Subclass 801. The applicant claimed to be the spouse of the sponsor, an Australian citizen. The dispute centred on whether the parties met the criteria for a genuine and continuing spousal relationship as required by the *Migration Act 1994* (Cth) and the *Migration Regulations 1994* (Cth). The decision was made by Member M. Edgoose of the Tribunal.

The Tribunal was required to determine whether the parties were validly married and, if so, whether they met the other requirements for a spouse relationship under section 5F of the Act. Specifically, the Tribunal had to consider whether there was a mutual commitment to a shared life as a married couple to the exclusion of all others, whether the relationship was genuine and continuing, and whether the couple lived together or not separately and apart on a permanent basis. In making this assessment, the Tribunal was obliged to have regard to all the circumstances of the relationship, including the financial, household, and social aspects, and the nature of the commitment to each other, as outlined in regulation 1.15A(3).

The Tribunal found that the parties were validly married, evidenced by a certificate of marriage. Furthermore, the Tribunal was satisfied, based on the evidence provided, that the parties met the requirements concerning the financial aspects of their relationship, the nature of their household, the social aspects, and their commitment to each other. This conclusion was supported by relationship statements detailing their history, the birth certificates of their three children, and evidence of joint living arrangements and financial pooling. The Tribunal placed significant weight on the fact that the couple had three children and had lived together as a family unit for an extensive period.

Consequently, 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.