EL Omar (Migration)

The matter before the Federal Circuit and Family Court of Australia concerned an appeal by the visa applicant, EL Omar, against a decision regarding his Partner (Provisional) (Class UF) visa application. The sponsor, an Australian citizen, had applied for a divorce from her previous marriage on 20 December 2016, with a Federal Circuit and Family Court divorce order granted on 6 December 2018. The parties claimed to have married by proxy on 27 October 2018, after which the sponsor travelled to Gaza to meet the applicant on 1 March 2020. The Department of Home Affairs had raised concerns about the validity of the marriage, noting that the sponsor's divorce order was granted after the purported marriage date.

The primary legal issue was whether the marriage solemnised on 27 October 2018, prior to the finalisation of the sponsor's divorce, constituted a valid marriage for the purposes of the visa application. The court was also required to consider the nature and duration of the relationship, including its financial and household aspects, and the commitment between the parties, particularly given they lived in different countries for much of the relationship. The impact of COVID-19 restrictions and the security situation in Gaza on their ability to live together was also a relevant consideration.

The court reasoned that while the marriage ceremony on 27 October 2018 was not solemnised under the *Marriage Act 1961* (Cth) due to the pending divorce, it could be considered as a demonstration of the parties' commitment at that time. The court noted that a later Sharia court deed was considered valid. The court acknowledged the limited household and financial aspects of the relationship due to the parties living in different countries, exacerbated by COVID-19 restrictions and the security situation in Gaza. Ultimately, the court concluded that the matter should be remitted for reconsideration by the Minister, finding that the visa applicant met certain criteria for a Subclass 309 visa.