1929959 (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Provisional) (Class UF) visa, subclass 309. The applicant claimed to be the spouse of the review applicant, an Australian citizen. The core dispute revolved around whether the parties were in a genuine and continuing married relationship as required by the Migration Act 1958 and associated regulations.

The Tribunal was required to determine if the parties were validly married and, if so, whether they met the other criteria for a spouse relationship under section 5F of the Act. This involved assessing the financial, household, social aspects, and the nature of their commitment to each other, as outlined in regulation 1.15A(3). The Tribunal specifically had to consider whether the marriage, conducted by proxy in Pakistan while one party was in Australia, was valid for the purposes of the Act.

The Tribunal found that the marriage, conducted by proxy in Pakistan, was valid under Pakistani law and that real consent was given by both parties. Consequently, it was considered a valid marriage under section 12 of the Marriage Act 1961 and satisfied the requirement of section 5F(2)(a) of the Migration Act. However, the Tribunal noted that the parties had lived in different countries for a significant period, with limited financial, household, and social interaction, although they maintained frequent communication and had the approval of their families.

Given these findings, the Tribunal remitted the application for reconsideration by the Minister. The Tribunal directed that the visa applicant met the criteria for a valid marriage under clauses 309.211 and 309.221 of Schedule 2 to the Regulations, but the remaining criteria for the visa were to be considered further.