Tambunan (Migration)

This matter concerned an appeal by a secondary applicant for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream. The primary dispute before the Tribunal was whether the applicant and the primary visa holder were in a genuine spousal relationship, as required by section 5F of the Migration Act 1958 (Cth) and Regulation 1.12 of the Migration Regulations 1994, to satisfy Clause 187.311 of Schedule 2 to the Regulations.

The legal issues before the Tribunal were to determine the factual circumstances of the relationship between the applicants and to assess whether those facts established a genuine spousal relationship according to the legislative definitions. Specifically, the Tribunal was required to consider whether the couple met the criteria of being married, having a mutual commitment to a shared life to the exclusion of all others, maintaining a genuine and continuing relationship, and living together or not living separately and apart on a permanent basis. The Tribunal also considered evidence relating to the financial aspects of the relationship, such as joint property ownership and pooled financial resources, as well as social aspects and the nature of their commitment, including undertaking IVF treatment.

The Tribunal reasoned that to satisfy Clause 187.311, the secondary applicant must be a member of the family unit of the primary applicant, which, under Regulation 1.12, includes being a spouse or de facto partner. The definition of spouse in section 5F requires a valid marriage and a mutual commitment to a shared life, a genuine and continuing relationship, and cohabitation or not living permanently apart. The Tribunal found that the evidence presented, including financial and social aspects of the relationship, indicated that the couple met the criteria for a genuine spousal relationship.

Consequently, the Tribunal remitted the application for the Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration. The direction was that the applicant met the criteria under Clause 187.311 of Schedule 2 to the Regulations, allowing for further consideration of the remaining criteria for the visa.