Morales Bonilla (Migration)

The matter concerned an application for a Spouse (Temporary) (Class UK) visa, Subclass 820, made by the applicant, Ms. Morales Bonilla, against the visa sponsor, Mr. Silva. The applicant claimed that her relationship with Mr. Silva had ceased and that she had been a victim of family violence perpetrated by him. The Tribunal was required to consider whether the applicant met the criteria for the visa, particularly in light of the cessation of the spousal relationship and the alleged family violence.

The primary legal issues before the Tribunal were whether the applicant met the threshold requirements for the Subclass 820 visa, specifically whether she was not the holder of a Subclass 771 (Transit) visa at the time of application and whether she met one of the alternate requirements set out in clause 820.211(2), (5), (6), (7), (8) or (9) of Schedule 2 to the Migration Regulations 1994. A key determination was whether the applicant and sponsor were in a spouse or de facto relationship at the time of application, as defined by section 5F of the Migration Act 1958 and regulation 1.15A(3). The Tribunal also had to consider the impact of the cessation of the relationship and the alleged family violence, as defined in regulation 1.23, on the applicant's eligibility.

The Tribunal found that the applicant was not the holder of a Subclass 771 visa and therefore met clause 820.211(1)(a). It also found that the applicant and sponsor were validly married by proxy in Chile on 4 February 2015, satisfying the requirement for a valid marriage under section 5F(2)(a). While acknowledging the need to assess various factors under regulation 1.15A(3) concerning the nature of the married relationship, the Tribunal ultimately concluded that the applicant met the requirements of clause 820.221(3) due to the cessation of the relationship and the family violence she suffered.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria under clauses 820.221(3) and 820.211(1) of Schedule 2 to the Regulations.