Arib (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, Subclass 309. The applicant sought review of a decision concerning their eligibility for the visa, which requires the applicant to be the spouse or de facto partner of an Australian citizen, permanent resident, or eligible New Zealand citizen. The core of the dispute revolved around whether the applicant and the review applicant were in a valid married relationship for the purposes of the Act.

The Tribunal was required to determine whether the parties were in a valid married relationship, as defined by section 5F of the Migration Act 1958 (Cth). 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 live separately and apart on a permanent basis. In assessing these criteria, the Tribunal was obliged to consider all circumstances of the relationship, including financial, social, household, and commitment aspects, as outlined in regulation 1.15A(3) of the Migration Regulations 1994.

The Tribunal found that while the parties presented evidence of a genuine and continuing relationship, including financial support, companionship, mutual commitment, and representation to friends and family as married, a critical issue remained the validity of their marriage under Afghani law. The delegate had not been satisfied of the marriage's validity due to concerns about the provided marriage certificate and the lack of independent verification with Afghan authorities. Despite the Tribunal's request for verification, the Department advised it was unable to verify Afghani marriage certificates, only Tazkiras.

Consequently, the Tribunal remitted the applications for reconsideration. It directed that the first named visa applicant met the criteria for a Subclass 309 visa under clauses 309.211 and 309.221 of Schedule 2 to the Regulations, implying that the issue of marriage validity would be further addressed in the reconsideration.