Fathi (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309. The applicant, a national of Afghanistan, claimed to be the spouse of the review applicant, an Australian permanent resident. The central dispute was whether the parties were in a genuine and continuing spousal relationship as defined by the Migration Act 1958 (Cth).

The court was required to determine whether the parties met the criteria for a spousal relationship under section 5F of the Act. This involved assessing whether they were married to each other under a valid marriage, whether they had a mutual commitment to a shared life to the exclusion of others, whether the relationship was genuine and continuing, and whether they lived together or did not live separately and apart on a permanent basis. The court also had to consider all circumstances of the relationship, including financial, social, and household aspects, as outlined in regulation 1.15A(3) of the Migration Regulations 1994.

The court found that the parties were validly married, evidenced by a marriage booklet issued by the Consulate General of the Islamic Republic of Afghanistan. This marriage was accepted as valid under the laws of Pakistan and did not fall foul of any exclusions in the Marriage Act 1961. However, the court noted that while the marriage was valid, the assessment of a genuine and continuing spousal relationship required consideration of further factors, including the limited photographic evidence, the persuasive oral evidence presented, and the fact that the parties had not visited each other for over four years due to financial constraints.

Consequently, the Tribunal remitted the application for reconsideration. The direction was that the visa applicant met the criteria for a Subclass 309 visa concerning clauses 309.211, 309.212, 309.213, and 309.221 of Schedule 2 to the Regulations, indicating that further assessment of the remaining criteria was necessary.