Akbari (Migration)

This matter concerned a review of a decision not to grant a Partner (Provisional) (Class UF) visa. The applicant for the visa was the partner of the review applicant, an Australian citizen. The core dispute revolved around whether the relationship between the visa applicant and the review applicant met the legislative criteria for a de facto relationship at the time of the visa application, and for a spousal relationship at the time of the decision. The review was heard by Christine Kannis.

The Tribunal was required to determine two primary legal issues. Firstly, whether the visa applicant and the review applicant were in a de facto relationship within the meaning of section 5CB of the Migration Act 1958 (Cth) at the time the visa application was lodged. Secondly, whether, at the time of the decision, their relationship met the definition of a "spouse" as defined in section 5F of the Act. These determinations were to be made by considering all the circumstances of the relationship, including financial aspects, the nature of the household, social aspects, and the nature of the commitment to each other, as outlined in regulations 1.09A and 1.15A of the Migration Regulations 1994.

The Tribunal affirmed the decision not to grant the visa. It found that the parties were not married at the time of application and had not met in person until after the application was made, with the review applicant’s health restricting overseas travel. The Tribunal considered the factors set out in regulation 1.09A(3) and found a lack of evidence supporting a de facto relationship. Specifically, there were no joint financial assets or liabilities, no joint bank account, and no financial support provided by the review applicant due to his Centrelink income support payments. The parties had only lived together for one month after their marriage in the visa applicant's father's house, and had not shared household responsibilities. Furthermore, there was limited evidence of social recognition or a mutual commitment to a shared life to the exclusion of all others. Consequently, the visa applicant did not satisfy the criteria for the grant of the visa.