1415820 (Migration)

The Administrative Appeals Tribunal (AAT) considered an appeal by a visa applicant, a 50-year-old Chinese national, against a decision not to grant her a Partner (Provisional) (Class UF) visa. The visa applicant claimed to be the spouse of the review applicant, a 58-year-old Australian permanent resident who had been married three times previously. The visa applicant had arrived in Australia on a Student Guardian visa and departed on a bridging visa E. The parties claimed to have met in October 2012, commenced living together in March 2013, and married on 11 August 2013.

The primary legal issue before the Tribunal was whether the visa applicant met the requirements of clause 309.211 of the Migration Regulations 1994, which necessitates that the applicant be the spouse or de facto partner of an Australian citizen, permanent resident, or eligible New Zealand citizen at the time of the visa application and at the time of the decision. The Tribunal was required to determine if the parties were in a valid marriage and, if so, whether the other criteria for a spousal relationship, as defined by section 5F of the Migration Act 1958 and regulation 1.15A of the Migration Regulations 1994, were satisfied. These criteria include a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and cohabitation without permanent separation.

The Tribunal found that the parties were validly married in Australia on 11 August 2013, satisfying the requirement of being married to each other under a marriage valid for the purposes of the Act. However, the Tribunal concluded that the visa applicant did not satisfy the other criteria for a spousal relationship. This conclusion was reached after considering all the evidence, including information provided to the Department and the Tribunal, departmental interview records, and oral evidence from the parties and a witness. The Tribunal did not elaborate on the specific reasons why the other criteria were not met, but the decision indicates a failure to demonstrate an exclusive, genuine, and continuing spousal relationship.

Consequently, the Tribunal affirmed the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.