Ezedyar (Migration)

This matter concerned an appeal by an applicant for a Partner (Provisional) (Class UF) visa, subclass 309, against a decision by the Department. The applicant, a citizen of Afghanistan, claimed to be married to an Australian citizen sponsor. The core dispute revolved around the validity of the applicant's claimed marriage and whether the parties were in a genuine spousal or de facto relationship, as required for the visa. The delegate had previously refused the application, raising concerns about the applicant's claimed first marriage and the authenticity of documents supporting his wife's death.

The Tribunal was required to determine whether the applicant and sponsor were in a valid marriage or a genuine de facto relationship, and whether they had a mutual commitment to a shared life to the exclusion of all others. Specifically, the Tribunal had to consider the validity of the marriage under section 5F of the Migration Act 1958 (Cth), which requires the marriage to be valid for the purposes of the Act. This involved assessing the applicant's claims regarding his previous marriage and the evidence presented to support the current relationship.

The Tribunal found that the evidence regarding the applicant's first marriage was not credible, as verification checks indicated his first wife was alive and residing with him and their children. Consequently, the Tribunal concluded that the marriage to the sponsor was not valid for the purposes of the Act. However, the Tribunal acknowledged the additional evidence provided concerning the financial, household, social aspects, and nature of commitment of the relationship between the applicant and sponsor, as outlined in regulation 1.09AD of the Migration Regulations 1994.

Given the findings regarding the invalidity of the marriage, the Tribunal remitted the application for reconsideration by the Minister. The remittal was with the direction that the visa applicant met the criteria under clauses 309.211 and 309.221 of Schedule 2 to the Regulations, allowing for further assessment of the remaining criteria for the Subclass 309 visa.