El-Ghourani (Migration)

This matter concerned a Partner (Provisional) (Class UF) visa application by a Lebanese national, with an Australian citizen residing in Australia as the review applicant. The core dispute revolved around whether the parties had a genuine and continuing spousal relationship that met the criteria for the visa. The decision was made by Member Mila Foster.

The legal issues before the Tribunal were whether the visa applicant was the spouse of the review applicant at the time the visa application was made, and whether this spousal relationship continued to exist at the time of the Tribunal's decision. These determinations were crucial for satisfying the requirements of clauses 309.211 and 309.221 of Schedule 2 to the Migration Regulations 1994.

The Tribunal reasoned that for a person to be considered a spouse under section 5F of the Migration Act 1958, there must be a valid marriage, a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and cohabitation or not living separately and apart permanently. The Tribunal considered various aspects of the relationship, including financial and social elements, and the nature of the household, as outlined in regulation 1.15A(3). Despite inconsistencies in the dates provided for the engagement and marriage, the Tribunal accepted evidence, including a marriage certificate from Lebanese authorities and supporting documentation from a Sheikh and the Sharia Sunni Court, which indicated a valid marriage contract was entered into on 23 June 2021, with registration on 1 July 2021. The Tribunal also noted that the parties were second cousins, which did not constitute a prohibited marriage.

Consequently, the Tribunal found that the visa applicant was the spouse of the review applicant at the relevant times. The application was therefore remitted to the Minister for reconsideration, with a direction that the visa applicant met the criteria under clauses 309.211 and 309.221. The Minister was to consider the remaining criteria for the Subclass 309 visa.