Bitewelign (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309. The applicant sought review of a decision not to grant the visa. The core of the dispute revolved around whether the visa applicant was the spouse or de facto partner of the sponsor, an Australian citizen, as defined by the Migration Act 1958 (Cth). The Tribunal was required to determine if the parties were in a valid marriage or a de facto relationship at the relevant times.

The legal issues before the Tribunal were whether the parties were validly married at the time of the visa application and at the time of the decision, and if not, whether they met the criteria for a de facto relationship at the time of the application. Specifically, the Tribunal had to consider the validity of a marriage solemnised in Ethiopia in 2013, where the sponsor was under 18 years of age and domiciled in Australia, and the validity of a subsequent marriage in Ethiopia in 2017. The Tribunal also had to assess the evidence regarding the nature of the relationship, including financial, social, and household aspects, and the parties' commitment to each other, in accordance with the Migration Regulations 1994.

The Tribunal found that the 2013 marriage was invalid for the purposes of the Act because the sponsor was under 18 and domiciled in Australia at the time, rendering the marriage not recognised under s.88D(2)(b) of the Marriage Act 1961. Consequently, the parties could not satisfy the criteria for a spousal relationship at the time of the application. However, the Tribunal accepted evidence of a second marriage solemnised in Ethiopia in December 2017, by which time the sponsor was over 18. The Tribunal found this marriage to be valid for the purposes of the Act at the time of the decision. Despite the valid marriage at the time of the decision, the Tribunal concluded that the visa applicant did not satisfy the criteria for the grant of the visa, implying that the de facto relationship criteria at the time of application were not met, or that the invalidity of the initial marriage was determinative.

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