Belachew (Migration)

The Administrative Appeals Tribunal (AAT) considered an appeal by Mr. Belachew concerning a Partner (Provisional) (Class UF) visa, Subclass 309. The primary issue before the Tribunal was whether Mr. Belachew was the spouse of the review applicant, an Australian citizen, at the time of the visa application and at the time of the decision, as required by the Migration Regulations 1994.

The Tribunal was required to determine if the parties were in a married relationship that met the criteria set out in section 5F(2) of the Migration Act 1958. This involved assessing whether they were married under a valid marriage, had a mutual commitment to a shared life to the exclusion of others, whether the relationship was genuine and continuing, and if they lived together or not separately and apart on a permanent basis. In making this assessment, the Tribunal had to consider all the circumstances of the relationship, including financial and social aspects, the nature of their household, and their commitment to each other, as detailed in regulation 1.15A(3).

The Tribunal found that the parties were validly married on 16 January 2015, a fact not disputed by the original decision-maker, and supported by a marriage certificate. The Tribunal also considered various forms of evidence, including phone contact records, witness statements, adoption material, financial transfers, photographs, and bank deposit records, in assessing the other requirements of a spouse relationship. While the Tribunal noted the existence of secondary applicants listed as dependent adopted children and found they were members of a family unit satisfying primary criteria, the ultimate decision was to remit the applications for reconsideration. The Tribunal directed that the first named visa applicant met the criteria under cl.309.211 and cl.309.221 of Schedule 2 to the Regulations, but affirmed the decisions not to grant the visas.