1505630 (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, specifically Subclass 309. The core dispute before the tribunal was whether the visa applicant was the spouse of the review applicant, an Australian citizen, as defined by section 5F of the Migration Act 1958 (Cth). This definition requires, among other things, that the parties be in a genuine and continuing relationship.

The tribunal was required to determine if the parties met the criteria for a spousal relationship under clauses 309.211(2) and 309.221 of the Regulations. This involved assessing whether the parties were married to each other under a marriage valid for the purposes of the Act, whether they had a mutual commitment to a shared life to the exclusion of all others, whether their relationship was genuine and continuing, and whether they lived together or not separately and apart on a permanent basis, as stipulated by section 5F(2) of the Act. The tribunal also had to consider all circumstances of the relationship, including financial, social, household, and commitment aspects, as outlined in regulation 1.15A(3).

The tribunal found that the parties had been validly married twice, with the most recent marriage occurring in Nigeria on 5 September 2013, and there was no evidence to suggest this marriage was not valid under the Act. While the parties were not living together and had limited joint assets or liabilities, the tribunal accepted evidence that the review applicant provided regular financial support to the visa applicant and their children. The tribunal concluded that the first named visa applicant met the criteria for the grant of the visa under clauses 309.211(2) and 309.221.

Consequently, the tribunal remitted the application for reconsideration by the Minister, with a direction that the first named visa applicant met the specified criteria. The tribunal also noted that the decision of the department had not referenced the secondary applicants included in the visa application, and directed that their applications should be considered in full.