1900797 (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, Subclass 309, by a visa applicant residing in China, who claimed to be the spouse of the review applicant, an Australian permanent resident. The dispute centred on whether the parties met the criteria for a genuine and continuing spousal relationship at the time of the visa application and at the time of the decision. The Tribunal was required to determine if the parties were in a married relationship as defined by section 5F of the Migration Act 1958 (Cth).

The legal issues before the Tribunal were whether the parties were validly married and, if so, whether they met the further requirements for a spousal relationship under section 5F(2) of the Act. These requirements include a mutual commitment to a shared life as a married couple to the exclusion of all others, the genuineness and continuation of the relationship, and whether they lived together or not separately and apart on a permanent basis. The Tribunal was directed to consider all circumstances of the relationship, including financial, household, social aspects, and the nature of their commitment to each other, as outlined in regulation 1.15A(3) of the Migration Regulations 1994 (Cth).

The Tribunal found that the parties were validly married in November 1997, based on a notarised marriage certificate. While the decision text does not detail the Tribunal's specific findings on all the other criteria, it indicates that the Tribunal was satisfied that the primary visa applicant met certain criteria, including clauses 309.211(2) and 309.221 of Schedule 2 to the Regulations. The Tribunal concluded that the matter should be remitted for reconsideration by the Minister.

The Tribunal remitted the applications for Partner (Provisional) (Class UF) visas for reconsideration, with a direction that the first named visa applicant met specific criteria for a Subclass 309 visa. The application for the secondary applicant was also remitted for consideration on the basis of the direction given for the primary application.