Mohammed (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Residence) (Class BS) visa, Subclass 801. The applicant sought to establish that they were in a genuine and continuing spousal or de facto relationship with their sponsor, an Australian citizen. The primary dispute revolved around whether the parties met the definition of a spouse or de facto partner as defined in the Migration Act 1994 and associated regulations.

The Tribunal was required to determine if the parties were in a genuine and continuing married relationship, satisfying the criteria set out in section 5F of the Act. This involved assessing whether they were married to each other under a valid marriage, had a mutual commitment to a shared life as a married couple to the exclusion of all others, and lived together or did not live separately and apart on a permanent basis. The Tribunal also had to consider all circumstances of the relationship, including financial, social, and household aspects, as outlined in regulation 1.15A(3).

The Tribunal found that the parties were validly married, evidenced by a marriage certificate. However, it noted that the delegate had given adverse weight to findings from a site visit to the applicant's family home in India, where interviewees allegedly claimed the applicant was not married and lacked awareness of his circumstances in Australia. The Tribunal also considered departmental records indicating the applicant had visited India on two occasions without his sponsor. Despite these concerns, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the application for a Partner (Residence) (Class BS) visa for reconsideration, with a direction that the applicant meets criterion cl.801.221(2)(c) of Schedule 2 to the Regulations.