Virk (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, subclass 801. The applicant sought to establish that they were in a genuine and continuing spousal relationship with their sponsor, an Australian citizen, as required by the Migration Regulations 1994. The Tribunal was tasked with considering whether the parties met the criteria for a married relationship under section 5F of the Act.

The primary legal issue before the Tribunal was to determine if the applicant and sponsor were in a married relationship that satisfied the requirements of the Act, specifically whether they were married, had a mutual commitment to a shared life to the exclusion of others, were genuine and continuing, and lived together or not separately and apart on a permanent basis. This required the Tribunal to consider all circumstances of the relationship, including financial aspects, the nature of the household, social aspects, and the nature of their commitment to each other, as outlined in regulation 1.15A(3).

The Tribunal found that the parties were validly married in Melbourne on 27 July 2013, satisfying section 5F(2)(a). Furthermore, the Tribunal was satisfied, based on documentary evidence, that the parties had jointly purchased land and were building a home together, demonstrating a pooling of financial resources and joint ownership of a major asset and liability. This evidence supported a finding that the financial aspects of the relationship met the requirements of regulation 1.15A(3)(a).

Consequently, the Tribunal remitted the application for reconsideration by the Department, directing that the applicant met the criteria under regulation 801.221(2)(c) of Schedule 2 to the Regulations.