Danquah (Migration)

This matter concerned an appeal by a visa applicant and review applicant against a decision regarding a Partner (Provisional) visa (Subclass 309). The core dispute revolved around whether the parties were in a genuine and continuing spousal relationship, as required by clauses 309.211(2) and 309.221 of the Migration Regulations 1994. The review applicant, an Australian citizen, had previously been married and in a de facto relationship, and had a son from a previous relationship who was also a secondary applicant. The visa applicant resided in Ghana.

The legal issues before the Tribunal were whether the parties were validly married and, if so, whether they met the other requirements for a spousal relationship under section 5F of the Migration Act 1958. This involved assessing the financial aspects, nature of the household, social aspects, and the nature of the parties' commitment to each other, as detailed in regulation 1.15A(3). The delegate who made the original decision had expressed concerns about the financial commitment, shared household, presentation to family and friends, and communication between the parties, particularly given the limited time they had spent together and their living in different countries.

The Tribunal considered the evidence, including the validity of the marriage, the financial arrangements where the review applicant sent money to Ghana for the visa applicant and his son, and the care provided by the visa applicant for the son. While acknowledging the geographical separation and the lack of shared day-to-day expenses, the Tribunal noted that this was not unusual in such circumstances. The Tribunal concluded that the initial concerns of the delegate were assuaged by the consistency of the evidence provided by the parties.

Ultimately, the Tribunal determined that the matter should be remitted for reconsideration. The Tribunal directed that the first named visa applicant met the criteria under clauses 309.211 and 309.221, and the secondary visa applicant met the criteria under clause 309.321 of Schedule 2 to the Regulations.