Shen (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa. The applicant sought to establish a continuing spousal relationship with the sponsor. However, the sponsor had withdrawn their sponsorship and filed for divorce, indicating the relationship had ceased. The decision under review was made by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant was, at the time of the decision, the spouse of the sponsor, or if the relationship had ceased, whether the circumstances prescribed by clause 801.221(5), (6)(i) or (6)(ii) of the Migration Regulations 1994 were met. This required the Tribunal to determine if the parties were in a genuine and continuing married relationship, as defined by section 5F of the Migration Act 1958, which includes mutual commitment, living together, and presenting as a married couple to the exclusion of others.

The Tribunal considered the definition of a spouse relationship under section 5F of the Act and regulation 1.15A of the Migration Regulations 1994, which mandates consideration of financial, household, social aspects, and commitment to the relationship. The Tribunal noted that the sponsor had advised the Department in August 2018 that the relationship had ended and had filed for divorce in May 2018. The applicant provided no documentary evidence of a continuing relationship since that time and, when questioned, confirmed the relationship had ceased. Consequently, the Tribunal found no evidence of shared finances, joint household arrangements, mutual representation to others, or continued mutual commitment.

The Tribunal affirmed the decision not to grant the applicant a Partner (Residence) (Class BS) visa, concluding that the applicant did not satisfy the criteria for the grant of the visa.