Asim (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309. The applicant claimed to be the spouse of the review applicant, an Australian citizen. The central dispute was whether the parties were in a genuine and continuing relationship at the time the visa application was made, as required by the Migration Regulations 1994. The decision was made by Helen Kroger, a Member of the Tribunal.

The legal issues before the Tribunal were whether the parties met the definition of a "married relationship" under section 5F of the Migration Act 1958. This required determining if they were validly married, had a mutual commitment to a shared life as a married couple to the exclusion of all others, if their relationship was genuine and continuing, and if they lived together or did not live separately and apart on a permanent basis. The Tribunal was also required to consider all the circumstances of the relationship, including financial, household, and social aspects, and the nature of their commitment to each other, as outlined in regulation 1.15A(3).

The Tribunal reasoned that the parties had provided evidence of a marriage ceremony in Kabul in 2013, supported by a marriage certificate. It found no information to suggest this document was not genuine or valid, thus satisfying the requirement of being validly married for the purposes of the Act. While the Tribunal noted submissions regarding inconsistent evidence about the applicant's age, it concluded, after careful consideration of all material, that the parties were in a married relationship within the meaning of section 5F(2) at the time of the visa application.

Consequently, the Tribunal was satisfied that the applicant met the requirements of clause 309.211(2) of Schedule 2 to the Regulations. The application was remitted to the Minister for reconsideration of the remaining criteria for a Subclass 309 visa.