Gao (Migration)

This matter concerned an appeal by a visa applicant and her two children against the refusal of a Partner (Provisional) (Class UF) visa, Subclass 309. The visa applicant claimed to be the spouse of an Australian citizen, the review applicant. The core of the dispute revolved around whether the parties were in a genuine and continuing married relationship as defined by the Migration Act 1958 (Cth).

The court was required to determine whether the parties were in a married relationship for the purposes of the Act, specifically considering the criteria outlined in section 5F(2) of the Act. This involved assessing whether they were validly married, 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 not separately and apart on a permanent basis. The court also had to consider all circumstances of the relationship, including financial and social aspects, the nature of their household, and their commitment to each other, as detailed in regulation 1.15A(3) of the Migration Regulations 1994.

The court found that the parties were validly married under a marriage recognised by the Act, based on a marriage certificate from the People's Republic of China. However, the court noted that the financial aspects of the relationship, such as joint ownership of assets or pooling of resources, were not clearly established, with the parties living in different countries and the visa applicant having remitted money to the review applicant. The court concluded that further consideration of the remaining criteria for the visa, including those pertaining to the secondary applicants, was necessary.

Consequently, the Tribunal remitted the applications for Partner (Provisional) (Class UF) visas for reconsideration by the Minister, with a direction that the first named visa applicant met the criteria under cl.309.211 and cl.309.221 of Schedule 2 to the Regulations.