1505119 (Migration)

The Administrative Appeals Tribunal considered an application by Ms Snezana Gladovic, a Serbian national, for a Partner (Provisional) (Class UF) visa. Ms Gladovic, who arrived in Australia on a business visitor visa with a no-further-stay condition, married Australian citizen Mr Nikica Brekalo on 3 December 2013. Her subsequent requests for waivers of the no-further-stay condition and applications for visitor visas were refused, and she was granted bridging visas until her departure from Australia on 12 March 2014, with a three-year exclusionary period imposed. The core dispute before the Tribunal was whether Ms Gladovic and Mr Brekalo were, at the time of the visa application and at the time of the decision, in a genuine and continuing spousal relationship to the exclusion of others, as required by Australian migration law.

The Tribunal was required to determine whether Ms Gladovic and Mr Brekalo met the criteria for a spousal relationship under clause 309.211(2) and 309.221 of Schedule 2 to the Migration Regulations 1994. This involved assessing whether they were married to each other under a marriage valid for the purposes of the Act, whether there was a mutual commitment to a shared life as husband and wife to the exclusion of all others, whether the relationship was genuine and continuing, and whether they lived together or not separately and apart on a permanent basis, as defined by section 5F of the Migration Act 1958. In making this assessment, the Tribunal was directed to have regard to all the circumstances of the relationship, including financial and social aspects, the nature of their household, and their commitment to each other, as outlined in regulation 1.15A(3).

The Tribunal found that the parties were married to each other under a marriage valid for the purposes of the Act. Regarding the financial aspects, the Tribunal noted that Ms Gladovic was not employed and was fully dependent on Mr Brekalo, who supported her financially and funded extended periods overseas to be with her. They shared access to his bank account, from which Ms Gladovic withdrew funds for living expenses. The Tribunal considered the evidence of their living arrangements, which involved moving between Bosnia and Serbia, and extended periods together in various countries, indicating a commitment to living together when visa requirements permitted. The Tribunal concluded that, based on the evidence presented, the parties met the criteria for a genuine and continuing spousal relationship.

Consequently, the Tribunal remitted the application for a Partner (Provisional) (Class UF) visa for reconsideration by the Minister, with a direction that Ms Gladovic met the criteria specified in clauses 309.211 and 309.221 of Schedule 2 to the Regulations.