Qi (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa by the applicant, who claimed to be the spouse of the sponsor. The core dispute before the Tribunal was whether the applicant and sponsor were in a genuine and continuing spousal relationship as defined by section 5F of the Migration Act 1958 (Cth). The applicant, born in China, entered Australia on a student visa and was subsequently granted a subclass 820 partner visa. The sponsor, an Australian permanent resident also born in China, had met the applicant in 2013, and they married in January 2014.

The Tribunal was required to determine if the parties met the criteria for a spousal relationship under section 5F of the Act, which necessitates a valid marriage, a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and cohabitation or not living separately and apart on a permanent basis. This assessment involved considering all circumstances of the relationship, including financial and social aspects, the nature of their household, and their commitment to each other, as outlined in regulation 1.15A(3) of the Migration Regulations 1994. Specifically, the Tribunal had to assess evidence relating to joint ownership of assets, pooled financial resources, legal obligations, living arrangements, and the overall nature of their commitment.

The Tribunal found that while the parties were validly married, the evidence presented did not establish a genuine and continuing spousal relationship. Significant inconsistencies and a lack of credible evidence were noted. The parties were unable to provide details about the addresses they claimed to have lived at together, and the sponsor had provided different residential addresses to external agencies during the period they claimed to be cohabiting, while his relationship status with these agencies remained recorded as single. Furthermore, the Tribunal observed unexplained large cash deposits in the applicant's bank statements and noted that the evidence regarding financial pooling was insufficient. The Tribunal concluded that the parties had not satisfied the onus of proving they lived together, provided each other with companionship and support, or viewed their relationship as long-term, leading to the affirmation of the decision not to grant the visa.