Shen (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, subclass 801 (Spouse), by an applicant claiming to be the spouse of an Australian permanent resident. The dispute centred on whether the applicant met the criteria for a genuine and continuing spousal relationship as required by the *Migration Act 1958* (Cth) and associated regulations. The decision was made by Stephen Witts, a Member of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was to determine whether the applicant and the sponsor were in a genuine and continuing spousal relationship for the purposes of the Act. This required assessing whether the parties met the definition of a "spouse" under section 5F of the Act, which includes being validly married, having a mutual commitment to a shared life as a married couple to the exclusion of all others, and living together or not living separately and apart on a permanent basis. The Tribunal was also required to consider all circumstances of the relationship, including financial, household, and social aspects, as well as the nature of their commitment to each other, as outlined in regulation 1.15A(3).

The Tribunal found that the parties were validly married, satisfying section 5F(2)(a) of the Act. However, the Tribunal concluded that it needed to consider the remaining criteria for a spousal relationship, including the financial, household, and social aspects, and the nature of the commitment to each other. The Tribunal noted that each specific matter contained in regulation 1.15A(3) must be answered, referencing *He v MIBP* [2017] FCAFC 206.

Consequently, the Tribunal remitted the application for reconsideration. The direction was that the applicant met the criteria under clause 801.221 of Schedule 2 to the Regulations, with the understanding that further assessment of the remaining criteria for the Subclass 801 visa was required.