El Masri (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, subclass 801 (Spouse), by Mrs El Masri. The dispute arose because the Tribunal, while considering the application, found that while the applicant and her sponsoring partner, Mr Abdallah, were validly married and demonstrated a genuine married relationship with a mutual commitment to a shared life, the evidence regarding the financial aspects of their relationship was inadequate.

The legal issues before the Tribunal were whether Mrs El Masri met the criteria for a Subclass 801 visa, specifically concerning the definition of a "spouse" under section 5F of the Migration Act 1958 (Cth) and regulation 1.15A of the Migration Regulations 1994 (Cth). This required the Tribunal to assess if the parties were married, had 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, considering all circumstances including financial, household, social aspects, and commitment to each other.

The Tribunal reasoned that while the evidence of the financial aspects of the relationship was a concern, other evidence, including the birth certificates of their two children, statements from the couple and their social circle, photographs, travel history, a joint bank account, and medical records, strongly supported the genuine nature of their married relationship. The Tribunal was satisfied that the parties were validly married and met the criteria relating to the nature of their household, social aspects, and commitment to each other.

Consequently, the Tribunal remitted the application for reconsideration, directing that the applicant met the criteria specified in clauses 801.221(2)(b)-(d) of Schedule 2 to the Regulations, with the remaining criteria to be considered.