Ghiwet (Migration)

This matter concerned an appeal by the visa applicant against a decision of the Migration Review Tribunal. The core dispute revolved around whether the applicant and the review applicant, an Australian citizen, were in a genuine and continuing spousal relationship for the purposes of a Partner (Provisional) (Class UF) visa, subclass 309.

The Tribunal was required to determine whether the parties met the criteria for a spousal relationship as defined by section 5F of the Migration Act 1958 (Cth). This involved assessing whether they were validly married, whether there was a mutual commitment to a shared life as a married couple to the exclusion of all others, whether the relationship was genuine and continuing, and whether they lived together or not separately and apart on a permanent basis. The Tribunal also had to consider all the circumstances of the relationship, including financial and social aspects, the nature of their household, and their commitment to each other, as outlined in regulation 1.15A(3) of the Migration Regulations 1994.

The Tribunal found that the parties were validly married, evidenced by a marriage certificate from Ethiopia. Despite residing in separate countries for a significant period, which limited opportunities for joint financial activities and cohabitation, the Tribunal was satisfied that there was sufficient evidence of a genuine and continuing spousal relationship. This conclusion was based on extensive communication records, including daily contact when possible, evidence of ongoing emotional support, and the long-term nature of their relationship spanning approximately five years. The Tribunal also noted the sponsor's clear plans for the future and her knowledge of her husband's personality, indicating a commitment to the spousal relationship. The Tribunal considered that the lesser level of face-to-face contact was a direct consequence of the parties living in separate countries.

Consequently, the Tribunal remitted the application for the Partner (Provisional) (Class UF) visa for reconsideration, with a direction that the visa applicant met the criteria for a spousal relationship under clauses 309.211 and 309.221 of Schedule 2 to the Regulations.