Elmazovska (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309. The Tribunal was required to determine whether the visa applicant was the sponsor's spouse for the purposes of the *Migration Act 1958* (Cth) at the time of application and at the time of the decision, and whether the applicant continued to be the spouse of the sponsor.

The primary legal issues before the Tribunal were whether the parties were validly married, and if so, whether they were in a genuine and continuing spousal relationship as defined by section 5F of the Act and regulation 1.15A of the *Migration Regulations 1994* (Cth). This definition requires a valid marriage, a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and that the couple live together or not separately and apart on a permanent basis. The Tribunal was directed to consider all circumstances of the relationship, including financial, household, social aspects, and commitment to each other.

The Tribunal found that the parties were validly married in Macedonia on 24 July 2015, satisfying the requirement of section 5F(2)(a). While the financial aspects of the relationship were limited due to the parties residing in separate countries, with the sponsor providing some financial assistance to the applicant, the Tribunal considered other factors. The Tribunal heard oral evidence from both parties, finding them to be frank and credible. The decision notes that documentation provided to the Tribunal was not available to the original delegate.

The Tribunal concluded that the matter should be remitted for reconsideration by the Minister. The direction was that the visa applicant met the criteria in cl.309.211, cl.309.221, and cl.309.223 of Schedule 2 to the Regulations.