Cai (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, Subclass 309, where the applicant sought review of a decision by the Tribunal. The central dispute revolved around whether the applicant was the spouse of an Australian citizen or permanent resident, as defined by section 5F of the Migration Act 1958 (Cth), for the purposes of clauses 309.211 and 309.221 of the Regulations.

The Tribunal was required to determine if the parties were in a married relationship, which necessitates a valid marriage, a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and that they either live together or do not live separately and apart on a permanent basis. In assessing these requirements, the Tribunal considered the "4 Pillars" of a relationship: the financial aspects, the nature of the household, the social aspects, and the nature of the parties' commitment, as outlined in regulation 1.15A.

The Tribunal found that while the parties were financially independent in their day-to-day needs, the sponsor had provided gifts to the applicant. Regarding the nature of the household, the applicant had resided with the sponsor's family for an extended period, sharing meals, before relocating to Romania for employment. The parties acknowledged they were not legally able to live together due to visa restrictions but had lived together for a period prior to the pandemic. They maintained their relationship through regular daily communication. The Tribunal concluded that the financial aspect of the relationship fell within the particular circumstances of the parties.

Ultimately, the Tribunal remitted the applications for Partner (Provisional) (Class UF) visas for reconsideration by the Minister, with a direction that the visa applicant met the criteria specified in cl 309.211 and cl 309.221 of Schedule 2 to the Regulations.