Gaudry (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Provisional) (Class UF) visa, subclass 309, made by a visa applicant claiming to be the spouse of an Australian citizen. The central dispute concerned whether the parties met the definition of "spouse" as defined in section 5F of the Migration Act 1958 (Cth).

The Tribunal was required to determine if the parties were in a married relationship that satisfied the criteria set out in section 5F(2) of the Act. This involved assessing whether they were married to each other under a valid marriage, shared a mutual commitment to a shared life as a married couple to the exclusion of others, had a genuine and continuing relationship, and lived together or did not live separately and apart on a permanent basis. The Tribunal 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 Tribunal found that the parties were validly married for the purposes of the Act. It also found that they had evidenced a spouse-like financial relationship despite living in different countries, and had previously maintained a spousal household in Australia and during visits. While the parties lived separately due to geographic and visa reasons, the Tribunal considered the evidence presented regarding the financial and household aspects of their relationship.

Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration by the Minister. The Tribunal directed that the visa applicant met the criteria specified in clause 309.211 and 309.221 of Schedule 2 to the Regulations, allowing for further consideration of the remaining criteria for the subclass 309 visa.