2201197 (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, Subclass 309. The review applicant, an Australian citizen, was the sponsor, and the primary visa applicant sought to join him. The secondary visa applicant was the review applicant's young adult daughter, who was also a refugee in the same third country as the primary visa applicant. The dispute centred on whether the primary visa applicant and the review applicant were in a genuine and continuing spousal relationship, and whether they were validly married.

The Tribunal was required to determine whether the parties were in a spouse or de facto relationship, as defined by the Migration Act 1958 (Cth) and associated regulations. Specifically, the Tribunal had to consider whether the parties were married to each other under a marriage valid for the purposes of the Act, whether there was a mutual commitment to a shared life as a married couple to the exclusion of all others, whether the relationship was genuine and continuing, and whether they lived together or not separately and apart on a permanent basis. The Tribunal also had to consider the financial and social aspects of the relationship and the nature of their household.

The Tribunal found that while the parties had been physically separated for a significant period due to circumstances beyond their control, including the review applicant's inability to return to Eritrea and concerns about travel to the country where the primary visa applicant resided as a refugee, they had maintained regular contact and financial support. The review applicant had financially supported the primary visa applicant, and they had represented themselves as spouses to family and friends, who expressed the opinion that the relationship was genuine. Despite limited opportunities for joint social activities due to their separation, the Tribunal was satisfied that there was a mutual commitment to a shared life to the exclusion of all others and that the relationship was genuine and continuing.

Consequently, the Tribunal concluded that the matter should be remitted for reconsideration.