Perederii (Migration)

This matter concerned an appeal by an applicant for a Partner (Residence) (Class BS) visa, subclass 801, against a decision made by the Tribunal. The applicant's claim was that her relationship with the sponsor had ceased due to family violence committed by the sponsor. The Tribunal was required to consider whether the parties were in a genuine spousal relationship prior to its cessation and whether the applicant had suffered family violence as defined by the regulations.

The legal issues before the Tribunal were twofold: first, whether the applicant and sponsor were in a genuine spousal relationship that had subsequently ceased, and second, whether the applicant had experienced family violence perpetrated by the sponsor. The definition of a spousal relationship under section 5F of the Act, including the requirements of a valid marriage, mutual commitment, genuineness, continuation, and cohabitation, was central to the first issue. The second issue required an assessment of whether the applicant's experience met the regulatory definition of family violence.

The Tribunal found that the parties were indeed married and had been in a genuine spousal relationship that ceased in March/April 2019. Crucially, the Tribunal was satisfied that the applicant had suffered family violence committed by the sponsor, evidenced by a police report and a Family Violence Final Intervention Order granted in June 2021. Given these findings, the Tribunal determined that the applicant met the criteria under clauses 801.221(4) and 801.221(6) of Schedule 2 to the Migration Regulations 1994. Consequently, the Tribunal remitted the application for a Partner (Residence) (Class BS) visa to the Minister for reconsideration, directing that the applicant met these specific criteria.