Brar (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Provisional) (Class UF) visa, subclass 309. The applicant sought to establish that they were in a genuine and continuing spousal relationship with the sponsor, an Australian citizen, as required by the Migration Act 1958 (Cth). The Tribunal's decision was under review.

The primary legal issue before the Tribunal was whether the applicant and the sponsor were in a genuine and continuing spousal relationship, satisfying the definition of 'spouse' under section 5F of the Act. This required determining if the parties were validly married, had a mutual commitment to a shared life as a married couple to the exclusion of 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 circumstances of the relationship, including financial and social aspects, the nature of their household, and their commitment to each other, as outlined in regulation 1.15A(3) of the Migration Regulations 1994.

The Tribunal found that the parties were validly married, having remarried on 23 May 2017, and that the marriage was valid for the purposes of the Act. The Tribunal also accepted evidence, including a birth certificate, that the parties had a young child together, indicating joint responsibility for the care and support of children. However, the Tribunal accorded little weight to the financial aspects of the relationship, noting that apparent joint assets belonged to the applicant's father and that the parties, living in separate countries, had not significantly pooled financial resources beyond a joint bank account. The Tribunal did not make a definitive finding on the other criteria for a spousal relationship, such as the nature of the household, social aspects, and the nature of their commitment to each other, beyond acknowledging the existence of their child and their remarriage.

Consequently, the Tribunal remitted the application for reconsideration by the Department, with a direction that the visa applicant met the criteria for a Subclass 309 visa concerning being the spouse or de facto partner of an Australian citizen and the validity of their marriage. The Department was to consider the remaining criteria for the visa.