Chan (Migration)

The Federal Circuit Court considered an appeal by a visa applicant concerning the refusal of a Partner (Provisional) (Class UF) visa. The core dispute revolved around whether the applicant and her sponsor were in a genuine and continuing spousal relationship as defined by the Migration Act 1958 (Cth).

The court 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 married under a valid marriage, whether they demonstrated a mutual commitment to a shared life to the exclusion of others, if the relationship was genuine and continuing, and if they lived together or not separately and apart on a permanent basis. The court also had to consider all circumstances of the relationship, including financial and social aspects, and the nature of their household and commitment to each other, as outlined in regulation 1.15A of the Migration Regulations 1994.

The court found that while there were inconsistencies in the oral evidence provided by the applicant and sponsor, particularly regarding financial matters and living arrangements, these were not fatal to the application. The court gave weight to consistent evidence about the unorthodox beginning of their relationship, their facing family opposition, and the supportive oral evidence from the applicant's sister. Ultimately, the court was satisfied that the parties demonstrated a mutual commitment to a shared life, that their relationship was genuine and continuing, and that they did not live separately and apart on a permanent basis.

Consequently, the court remitted the application for reconsideration by the Minister, directing that the primary visa applicant met the relevant criteria for a Subclass 309 visa, and that the secondary applicants should be considered against the remaining criteria.