Aryal (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa (Subclass 309). The review applicant, Mr Tek Narayan Aryal, is an Australian permanent resident and the sponsor of the visa applicant, who resides in Nepal. The core of the dispute was whether the parties were in a genuine and continuing spousal relationship at the time of the visa application and at the time of the Tribunal's decision, as required by the Migration Regulations 1994.

The legal issues before the Tribunal were whether the parties met the criteria for a spousal relationship under section 5F of the Migration Act 1958 and regulation 1.15A of the Migration Regulations 1994. Specifically, the Tribunal had to consider whether the parties were validly married, whether they had a mutual commitment to a shared life as a married couple to the exclusion of all others, whether their relationship was genuine and continuing, and whether they lived together or did not live separately and apart on a permanent basis. The Tribunal was required to have regard to all the circumstances of the relationship, including financial and social aspects, the nature of their household, and their commitment to each other.

The Tribunal found that the parties were validly married on 17 May 2018, a fact not disputed by the delegate. However, the delegate had raised concerns regarding the financial intermingling of resources, the limited evidence of a shared household, the presentation of the parties as a couple to family and friends, and the overall commitment to the relationship due to a perceived lack of credible evidence. The Tribunal also noted inconsistencies in the evidence provided by the parties regarding their knowledge of each other's families, which were put to the parties under section 359A of the Act. Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration by the Minister. The Tribunal directed that the visa applicant met the criteria under cl 309.211 and cl 309.221 of Schedule 2 to the Regulations, and the secondary visa applicants met the criteria under cl 309.312 of Schedule 2 to the Regulations.