Bell (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Provisional) (Class UF) visa, Subclass 309. The dispute centred on whether the applicant and the sponsor, an Australian citizen, were in a genuine and continuing spousal relationship as defined by the Migration Act 1958 (Cth). The parties were validly married in their home country, but had lived in different countries for much of their relationship, a situation exacerbated by COVID-19 travel restrictions.

The Tribunal was required to determine if the parties met the criteria for a spousal relationship under section 5F of the Act. This involved assessing whether they were validly married, had a mutual commitment to a shared life to the exclusion of others, and were not living separately and apart on a permanent basis. The Tribunal also had to consider all circumstances of the relationship, including financial, household, and social aspects, as well as the nature of their commitment to each other, as outlined in regulation 1.15A of the Migration Regulations 1994.

The Tribunal found that the parties were validly married, accepting the provided marriage certificate as proof. It also noted valid divorce certifications for both parties from previous marriages. However, the Tribunal concluded that further consideration of the remaining criteria for a genuine and continuing spousal relationship was necessary, particularly in light of the extensive additional evidence provided, including financial assistance, communication, the sponsor's travel and temporary residence, their role as step-parent, family statements, and the impact of COVID-19 travel disruptions.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that the applicant met the criteria under cl 309.211 and cl 309.221 of Schedule 2 to the Regulations.