Al Huraishi (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, Subclass 309. The applicant claimed to be the spouse of the sponsor, an Australian citizen. The dispute before the Tribunal was whether the applicant met the definition of a spouse under section 5F of the Migration Act 1958 (Cth) and the associated regulations, specifically whether the parties were in a genuine and continuing married relationship.

The Tribunal was required to determine if the parties were validly married and if they met the other requirements for a spouse relationship as defined in section 5F(2) of the Act. This definition necessitates that the parties are married to each other under a marriage valid for the purposes of the Act, share a mutual commitment to a shared life as a married couple to the exclusion of all others, have a genuine and continuing relationship, and live together or not separately and apart on a permanent basis. The Tribunal also had to consider all circumstances of the relationship, including financial and social aspects, the nature of their household, and their commitment to each other, as outlined in regulation 1.15A(3).

The Tribunal found that the parties were validly married, evidenced by a marriage certificate registered in Iraq on 22 April 2018, with no evidence to suggest the marriage was not valid. Based on the evidence before it, the Tribunal concluded that the applicant was satisfied to be the spouse of the sponsor within the meaning of section 5F of the Act. However, the Tribunal acknowledged concerns raised in the primary decision regarding other criteria for the visa.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with the direction that the visa applicant meets the criteria specified in clauses 309.211, 309.212, 309.213, and 309.221 of Schedule 2 to the Regulations.