Ahmed (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309, made by a visa applicant who claimed to be the spouse of the review applicant, an Australian citizen. The primary dispute revolved around the validity of the parties' marriage and whether they met the criteria for a spousal or de facto relationship under the Migration Regulations 1994. The Tribunal was required to determine if the parties were validly married and, if not, whether they were in a de facto relationship.

The Tribunal first considered the validity of the marriage, which was conducted by proxy in Somalia. It noted that clause 309.211(2) and 309.221 of Schedule 2 to the Regulations require the parties to be in a married relationship that is valid for the purposes of the Act. However, the Tribunal found that official documents issued by the Somali government were deemed invalid by the Australian government due to the lack of a central, functioning government capable of issuing such documents. Consequently, the proxy marriage certificate was not accepted as a valid document for Australian migration purposes.

Given that the parties could not satisfy the requirements of a spousal relationship, the Tribunal then examined whether they met the criteria for a de facto relationship under section 5CB of the Act. This involves assessing various aspects of the relationship, including financial and social elements, the nature of their household, and their commitment to each other, as detailed in regulation 1.15A(3). The Tribunal concluded that the matter should be remitted for reconsideration by the Minister, with a direction that the visa applicant met certain preliminary criteria for the subclass 309 visa, specifically clauses 309.211 and 309.221 of Schedule 2, and regulation 2.03A.