To (Migration)

This matter concerned an application for review of a delegate's decision to refuse a Partner (Residence) (Class BS) visa, Subclass 801 (Spouse). The applicant, Mr To, claimed that his relationship with the sponsor, Ms Huynh, had ceased due to family violence. The Tribunal was required to determine whether Mr To was the spouse of Ms Huynh, whether the relationship had ceased, whether Mr To had suffered family violence, and whether that violence occurred while he was married to Ms Huynh.

The legal issues before the Tribunal were to ascertain if Mr To met the definition of a spouse under section 5F of the Migration Act 1958 (Cth), considering factors such as a mutual commitment to a shared life, the genuineness and continuation of the relationship, and whether they lived together. Crucially, the Tribunal had to determine if the applicant had suffered family violence as defined by the Migration Regulations 1994 (Cth), specifically under regulation 1.23, and if this violence occurred during the subsistence of the marriage.

The Tribunal found that Mr To was indeed the spouse of Ms Huynh, having been validly married and demonstrating a genuine and continuing relationship with a mutual commitment to a shared life. The Tribunal also found that the relationship had ceased on 30 May 2017. Regarding family violence, the Tribunal determined that Mr To had suffered family violence because an intervention order had been made against Ms Huynh under South Australian law, and Ms Huynh had been present in court and given an opportunity to be heard when the final order was made. However, the Tribunal noted that the intervention orders were made after the parties had separated, raising the question of whether the violence occurred while they were married.

The Tribunal remitted the application for reconsideration, directing that the applicant met the criteria for a Subclass 801 visa concerning family violence, specifically clauses 801.221(6)(b) and (c) of Schedule 2 to the Regulations. This indicates that despite the timing of the intervention order relative to the separation, the Tribunal was satisfied that the family violence criteria were met in the context of the visa application.