DAI (Migration)

This matter concerned an appeal by a visa applicant against a decision to refuse a Partner (Provisional) (Class UF) visa. The core of the dispute revolved around whether the applicant and their partner, an Australian citizen, were in a genuine and continuing spousal relationship as required by the *Migration Regulations 1994* (Cth). The Tribunal was tasked with determining if the parties met the criteria for a married relationship under section 5F of the *Migration Act 1958* (Cth).

The legal issues before the Tribunal were whether the parties were validly married and, if so, whether they met the other requirements for a "married relationship" as defined by section 5F(2) of the Act. This definition necessitates a mutual commitment to a shared life as a married couple to the exclusion of all others, a genuine and continuing relationship, and cohabitation or not living separately and apart on a permanent basis. In assessing these elements, the Tribunal was required to consider all circumstances of the relationship, including financial, household, social aspects, and the nature of their commitment to each other, as outlined in regulation 1.15A(3).

The Tribunal found that the marriage, which took place in the People's Republic of China, was valid for the purposes of the Act, as there was no evidence to the contrary. While acknowledging that inconsistencies in the evidence existed, particularly concerning the social aspects of the relationship where family and friends were unaware of the marriage, the Tribunal concluded that these were outweighed by other consistent evidence demonstrating a genuine, continuing, and long-term relationship. This included evidence of joint finances and ownership of major assets in Australia, and that the parties had resided together and shared a household in China.

Consequently, the Tribunal remitted the application for the Partner (Provisional) (Class UF) visa for reconsideration. The direction was that the visa applicant met the criteria specified in clauses 309.211 and 309.221 of Schedule 2 to the Regulations, and the second-named visa applicant met the criteria in clause 309.311 of Schedule 2 to the Regulations.