1507970 (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa by a visa applicant who claimed to be the spouse of the review applicant, an Australian citizen. The core dispute revolved around whether the applicants were in a genuine spousal relationship at the time of the visa application and at the time of the decision, as required by clauses 309.211 and 309.221 of the Migration Regulations 1994. The Tribunal was tasked with determining if the applicants met the criteria for a spousal relationship as defined by section 5F of the Migration Act 1958.

The legal issues before the Tribunal were whether the applicants were validly married and, if so, whether they met the further requirements for a spousal relationship. These requirements, as outlined in section 5F(2) of the Act and elaborated in regulation 1.15A(3), include a mutual commitment to a shared life to the exclusion of others, the genuineness and continuation of the relationship, and whether the couple lives together or not separately and apart on a permanent basis. The Tribunal was required to consider all circumstances of the relationship, including financial and social aspects, the nature of their household, and their commitment to each other.

The Tribunal found that the applicants were validly married in China on 15 May 2014, satisfying section 5F(2)(a). While acknowledging the applicants were not continuously living together, the Tribunal considered the financial aspects of their relationship, noting the review applicant owned her home and worked part-time, and the visa applicant had recently sold an apartment. The Tribunal concluded that, based on the evidence presented, the applicants were in a married relationship at both the time of application and the time of decision. Consequently, the Tribunal remitted the applications for reconsideration, directing that the visa applicant met the criteria for a Subclass 309 visa under clauses 309.211 and 309.221 of Schedule 2 to the Regulations.