The Migration Review Tribunal was established in 1999 under the Migration Act 1958 (Cth) ("Migration Act") and its jurisdiction, powers and statutory procedures are set out in that Act and the Migration Regulations 1994.
Section 31(1) Migration Act provides that there are prescribed classes of visas. A non-citizen applying for a visa must apply for a visa of a particular class . Only after the Minister is satisfied, inter alia that the relevant criteria have been satisfied, is a visa able to be granted . .
The relevant spouse and partner visas are set out in Migration Regulations 1994 ("MR-). Schedule 1, which includes 1220A Partner (provisional) (class UF), 1129 Partner (migrant) (class BC), 1215 Prospective marriage (temporary) (class TO) and schedule 2, which includes subclasses 309 Spouse (provisional) visa, 100 Spouse visa and 300 Prospective marriage visa.
An applicant for these visas must show that he or she is, or intends to become the spouse of valid person according to the Act. Regulation 1.15A of the MR defines "spouse" as follows:.
"(1) For the purposes of these Regulations, a person is the spouse of another person if the 2 persons are: .
(a) In a married relationship, as described in subregulation (1A); or.
(b) In a de facto relationship as described in subregulation (2).
(1A) Persons are in a married relationship if: (a) they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and .
(b) the Minister is satisfied that: .
(i) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and .
(ii) the relationship between them is genuine and continuing; and .
(iii) they: .
A. live together; or .
B. do not live separately and apart on a permanent basis. .
Due to the nature of de facto relationships being unregistered and therefore prima facie not easily proven the considerations for recognition of those partner relationship are more specifically defined under the regulations as follows:.