Gurung (Migration)

This matter concerned an appeal by Mr. Gurung against a decision of the Migration Review Tribunal regarding his application for a Partner (Provisional) (Class UF) visa, subclass 309. The core dispute revolved around whether Mr. Gurung and his sponsor, an Australian citizen, were in a genuine and continuing spousal relationship at the time of the visa application and at the time of the Tribunal's decision. The case was heard by Cheryl Cartwright.

The Tribunal was required to determine if 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 married to each other under a marriage valid for the purposes of the Act, whether they demonstrated a mutual commitment to a shared life as a married couple to the exclusion of all others, whether their relationship was genuine and continuing, and whether they lived together or not separately and apart on a permanent basis. In making this assessment, the Tribunal was directed to consider all 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).

The Tribunal found that the parties' marriage, solemnised on 4 January 2018, was valid for the purposes of the Act. However, the assessment of the financial aspects of the relationship revealed a lack of evidence regarding joint ownership of assets, joint liabilities, or legal obligations between the parties. While the parties had limited opportunities for cohabitation since their marriage, and the review applicant became pregnant during a visit, the Tribunal noted the absence of evidence concerning the pooling of financial resources or the sharing of day-to-day household expenses. Due to these deficiencies in demonstrating the financial aspects and other elements of a genuine and continuing spousal relationship, the Tribunal concluded that the remaining criteria for the visa could not be satisfied.

Consequently, the Tribunal remitted the application for the Subclass 309 visa to the Minister for further consideration of the outstanding criteria.