Zhang (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Partner), made by an applicant who claimed that her relationship with the sponsor had ceased and that she had been a victim of family violence. The decision under review was made by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criteria set out in cl.820.221(3)(a) and (3)(b)(i) of Schedule 2 to the Migration Regulations 1994. This required the Tribunal to determine if the applicant would have met the requirements of subclause 820.211(2), (5), or (6) but for the cessation of the relationship, and whether either the applicant or a dependent child had suffered family violence committed by the sponsor.

The Tribunal reasoned that before assessing claims of family violence, it must first determine if a genuine spousal relationship, as defined by s.5F of the Migration Act 1958, existed at any point. This definition requires 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 must consider all circumstances, including financial, household, and social aspects, as well as the nature of the parties' commitment, as detailed in r.1.15A(3). The Tribunal noted that the cessation of the relationship did not need to be caused by the family violence, but the relationship that ceased must have otherwise met the legislative requirements.

The Tribunal concluded that the matter should be remitted for reconsideration. The direction given was that the applicant meets the criteria under cl.820.221(3) of Schedule 2 to the Regulations.