MITEI (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Partner). The applicant claimed to be the spouse of the sponsor at the time of application, that the relationship had since ceased, and that she had been a victim of family violence. The Tribunal's decision was made by Member Christine Kannis.

The central legal issues before the Tribunal were whether the applicant met the criteria under cl.820.211(2)(a) of Schedule 2 to the Migration Regulations 1994 at the time of application, and if so, whether she had suffered family violence as contemplated by cl.820.221(3). Specifically, the Tribunal had to determine if a genuine spousal relationship existed at the time of application, and if the relationship had ceased, whether the applicant had suffered family violence committed by the sponsor.

The Tribunal reasoned that for an applicant to be eligible for a Subclass 820 visa despite the cessation of their relationship, they must have met the criteria in subclauses 820.211(2), (5), or (6) prior to the relationship ending, and either they or a dependent child must have suffered family violence committed by the sponsor. The definition of a spousal relationship under s.5F of the Migration Act 1958 requires a valid marriage, mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and cohabitation or not living permanently apart. The Tribunal noted that regard must be had to all circumstances, including financial, social, household, and commitment aspects, as detailed in r.1.15A(3). The Tribunal followed the approach approved in *Guven v MIMIA* [2006] FMCA 311, which requires assessing the existence of a spousal relationship before considering claims of family violence.

The Tribunal remitted the application for reconsideration, directing that the applicant be taken to meet the criteria under cl.820.211(2)(a) and cl.820.221(3) of Schedule 2 to the Regulations.