Phan (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Residence) (Class BS) visa, subclass 801, made by the applicant, who claimed their relationship with the sponsor had ceased and that they had been a victim of family violence. The Tribunal was required to determine whether the applicant met the criteria for the visa, particularly in light of the cessation of the relationship and the allegations of family violence.

The central legal issue was whether the applicant's relationship with the sponsor, prior to its cessation, constituted a genuine and continuing spousal relationship as defined by the Migration Act 1958 and the Migration Regulations 1994. Specifically, the Tribunal had to assess if the relationship met the requirements of a valid marriage, including mutual commitment, living together, and the exclusion of all others, as well as considering the financial, household, and social aspects, and the nature of the commitment between the parties. Only if such a relationship was found to have existed could the Tribunal then properly consider the claim of family violence.

The Tribunal reasoned that under clause 801.221(6)(b) and (c)(i) of the Regulations, a genuine partner relationship must have existed before its cessation for the applicant to qualify for the visa, even if family violence was a factor in the separation. This approach aligns with the principles established in *Guven v MIMIA* [2006] FMCA 311. The evidence presented included a marriage certificate confirming the parties were married on 23 April 2014. However, the sponsor had advised the Department on 3 November 2017 that she was withdrawing her sponsorship, stating the parties had been separated for some months and the applicant had moved out. Crucially, no evidence was provided to substantiate the claim of family violence, and the applicant did not appear at the hearing.

As the applicant failed to provide evidence to support the claim of family violence and did not meet the essential criteria for the visa, the Tribunal affirmed the decision not to grant the Partner (Residence) visa.