2102645 (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, Subclass 309. The applicant claimed to be the spouse of an Australian citizen. The core dispute revolved around whether the parties were in a genuine and continuing spousal relationship as defined by section 5F of the Migration Act 1958 (Cth). The Tribunal was required to determine if the parties met the criteria for a married relationship, which necessitates being validly married, having a mutual commitment to a shared life to the exclusion of others, and living together or not living separately and apart on a permanent basis.

The Tribunal considered the definition of "spouse" under section 5F(2) of the Act, which requires a valid marriage, mutual commitment, a genuine and continuing relationship, and cohabitation or not living separately and apart permanently. In assessing these elements, the Tribunal was directed by regulation 1.15A of the Migration Regulations 1994 to consider the financial, household, and social aspects of the relationship, as well as the nature of the parties' commitment to each other. The parties had provided documentary and oral evidence, including statements from friends and family, to support their claim of a genuine and continuing relationship.

The Tribunal found that the parties were validly married, as evidenced by their marriage certificate registered in January 2020. However, the Tribunal concluded that further consideration was required regarding the other aspects of a spousal relationship, particularly in light of the parties having long acquaintance while married to other spouses, their divorce and subsequent establishment of their relationship with limited joint life due to living in different countries, and their financial independence. Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that the visa applicant met the criteria under clauses 309.211 and 309.221 of Schedule 2 to the Regulations.