Barua (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Provisional) (Class UF) visa. The applicant sought to establish that they were the spouse of an Australian citizen. The primary dispute revolved around the validity of the sponsor's previous divorce, which was necessary to establish that he was legally free to marry the applicant. The sponsor claimed to have divorced his previous wife, Ms Lucky Akter, under Muslim Family Law, despite their marriage having been solemnised under Buddhist Law.

The Tribunal was required to determine whether the applicant was the spouse of the sponsor as defined by section 5F of the Migration Act 1958 (Cth). This involved assessing whether the sponsor's previous marriage to Ms Akter had been validly dissolved according to Bangladeshi law, given that a Buddhist male is not permitted to marry a Muslim female under Muslim Family Law. The Tribunal also considered whether the parties were in a de facto relationship, which would require meeting the 12-month relationship requirement under the Migration Regulations 1994.

The Tribunal reasoned that the sponsor's previous marriage, solemnised under Buddhist Law, could not be validly dissolved under Muslim Family Law, as the law explicitly applies to Muslim citizens and the marriage itself was not registered under that framework. The sponsor's admission that he was unsure if his lawyer had properly handled the divorce further undermined its validity. Consequently, the Tribunal concluded that the sponsor was not legally divorced from his previous wife at the time of his marriage to the applicant. As the applicant could not establish a valid marriage to the sponsor, and the de facto relationship criteria were not met, the applicant did not satisfy the requirements for the visa.

The Tribunal affirmed the decision not to grant the applicant a Partner (Provisional) (Class UF) visa.