1620095 (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309. The review applicant sought to have the delegate's decision to refuse the visa set aside. The primary issue before the Tribunal was whether the visa applicant was the spouse of the review applicant within the meaning of s.5F(2) of the Migration Act 1958 (Cth).

The Tribunal was required to determine whether the visa applicant's identity was established, despite concerns raised by the Department's delegate regarding inconsistencies in documentation and information provided. Specifically, the delegate noted that the visa applicant had entered Australia under a false identity and had provided conflicting details about his mother's name and the number of his siblings across different applications. The Tribunal also had to consider whether the relationship between the applicant and the review applicant was genuine and continuing, as evidenced by factors such as cohabitation, financial pooling, and the opinions of friends and family.

The Tribunal found that while the visa applicant had initially entered Australia under a false identity, the evidence presented by the review applicant, including a Ghanian passport, voter card, health insurance card, work references, and school records, all in the visa applicant's claimed name, did not provide a basis to conclude that the visa applicant was not who he claimed to be. The Tribunal noted that documents relied upon by the delegate to raise identity concerns were not provided to it. Furthermore, the Tribunal considered the evidence of a genuine and continuing relationship, including four years of cohabitation, knowledge of each other's lives, statements from friends and family, and the pooling of financial resources, which satisfied the criteria under cl.309.211 and cl.309.221 of Schedule 2 to the Migration Regulations 1994.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the visa applicant met the identity criteria and the criteria for a genuine and continuing relationship for a Subclass 309 visa.