Tola (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa by an Ethiopian citizen. The applicant had arrived in Australia on a subclass 820 visa and subsequently applied for the permanent subclass 801 visa. The delegate refused the visa, finding that the applicant and her sponsor were not in a genuine, continuing, and ongoing spousal relationship. The applicant sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether the applicant and the sponsor were in a genuine, ongoing, and exclusive spousal relationship at the time of the visa application and at the time of the decision, as required by cl.801.221(2)(c) of the Migration Regulations 1994. This required the Tribunal to consider the definition of "spouse" under s.5F of the Migration Act 1958, 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. The Tribunal also had regard to the factors outlined in r.1.15A(3) of the Migration Regulations, which include financial and social aspects of the relationship, the nature of the household, and the commitment to each other.

The Tribunal considered evidence including statutory declarations from the applicant and her family, tax returns, bank account details, and divorce documents. While the parties were validly married, the Tribunal noted conflicting information regarding their separation date and the applicant's failure to disclose the divorce and allegations of family violence to the department in a timely manner. The Tribunal found that the evidence did not establish a genuine, continuing, and ongoing spousal relationship at the relevant times, particularly given the divorce and the sponsor's subsequent relationship. Consequently, the Tribunal affirmed the delegate's decision.