1513361 (Migration)

This matter concerned an application for review by Mr Al Khuzai regarding a Partner (Provisional) (Class UF) visa for Ms Kshash. The Tribunal was required to determine whether Ms Kshash met the relevant criteria in Schedule 2 and the additional criteria in Regulation 2.03A of the Migration Regulations 1994. The Tribunal considered evidence from the Department's visa application file, documents provided by Mr Al Khuzai's migration agent, and oral evidence from Mr Al Khuzai and witnesses at the hearing.

The central legal issue was whether Mr Al Khuzai and Ms Kshash were in a spousal or de facto relationship as defined by sections 5F and 5CB of the Migration Act 1958. These definitions require the parties to be mutually committed to a shared life to the exclusion of others, have a genuine and continuing relationship, and be living together or not living apart on a permanent basis. The Tribunal was directed to consider all circumstances of the relationship, including financial, social, household, and commitment aspects.

The Tribunal found that Mr Al Khuzai and Ms Kshash met the criteria for a de facto relationship. It accepted the evidence that they met in Iraq in July 2013, became attracted to each other, exchanged contact details, and agreed to marry. They had a traditional engagement ceremony, and Mr Al Khuzai purchased a phone for Ms Kshash before leaving Iraq. They maintained daily contact and did not resile from their commitment. The Tribunal remitted the application for reconsideration by the Department, directing that Ms Kshash met regulation 2.03A and clauses 309.211(2) and 309.221 of Schedule 2 for a Subclass 309 visa.