1935448 (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Provisional) (Class UF) visa, Subclass 309. The dispute concerned whether the visa applicant was the spouse of the review applicant, an Australian citizen, at the time of the visa application on 22 November 2018. The Tribunal also considered whether the parties continued to meet the criteria for a spouse relationship at the time of the Tribunal's decision, as required by clause 309.221 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was to determine if the parties were in a genuine and continuing spouse relationship, as defined by section 5F of the Migration Act 1958. This definition requires that the parties be married to each other under a marriage valid for the purposes of the Act, have a mutual commitment to a shared life as a married couple to the exclusion of all others, and live together or not live separately and apart on a permanent basis. The Tribunal was required to have regard to all the circumstances of the relationship, including the financial and social aspects, the nature of their household, and their commitment to each other, as detailed in regulation 1.15A(3).

The Tribunal found that the parties were validly married in Australia on 1 October 2017, satisfying the requirement of section 5F(2)(a). However, the delegate had not been satisfied that the other criteria for a spouse relationship were met. The Tribunal noted that evidence of events subsequent to the visa application could be relevant if it logically tended to show the existence or non-existence of facts relevant to the issue at the time of application. In this instance, the Tribunal considered it appropriate to make findings about the criteria in clause 309.221, which relates to the time of the Tribunal's decision.

Given the findings, the Tribunal remitted the applications for Partner (Provisional) (Class UF) visas for reconsideration by the Minister. The Tribunal directed that the first-named visa applicant met the criteria specified in clause 309.211 and clause 309.221 of Schedule 2 to the Regulations.