VIKRANT (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, subclass 801. The applicant sought to establish a spousal relationship with the sponsor, an Australian citizen, for migration purposes. The Tribunal was required to consider whether the parties were in a genuine and continuing married relationship, as defined by section 5F of the Migration Act 1958 (Cth).

The primary legal issue before the Tribunal was to determine if the applicant and sponsor met the criteria for a spousal relationship under clause 801.221(2) of Schedule 2 to the Migration Regulations 1994. This involved assessing whether the parties were married, had a mutual commitment to a shared life to the exclusion of all others, and lived together or not separately and apart on a permanent basis. The Tribunal was also directed to consider all circumstances of the relationship, including financial, social, household, and commitment aspects, as outlined in regulation 1.15A(3).

The Tribunal found that the parties were validly married in Australia, with the sponsor having finalised her previous divorce prior to the marriage. The Tribunal noted the parties' consistent account of meeting as international students and developing a relationship based on shared backgrounds and experiences, including overcoming personal difficulties. While the Tribunal was satisfied that the parties met the criteria for a valid marriage, it remitted the application for reconsideration to allow for a full assessment of the remaining criteria for the Subclass 801 visa.