Hemmingway (Migration)

The Administrative Appeals Tribunal considered the case of Hemmingway, where the visa applicant, a 51-year-old female from China, sought a Partner (Provisional) (Class UF) visa. The review applicant was her 74-year-old Australian citizen spouse. The core dispute revolved around whether the parties were in a genuine and continuing spousal relationship, both at the time of the visa application and at the time of the Tribunal's decision.

The Tribunal was required to determine if the visa applicant met the criteria for a Partner (Provisional) visa, specifically whether she was the spouse of an Australian citizen. This involved assessing if the parties were validly married, had a mutual commitment to a shared life to the exclusion of others, and if their relationship was genuine and continuing, including whether they lived together or not permanently separated. The Tribunal also had to consider all circumstances of the relationship, including financial and social aspects, and the nature of their household and commitment to each other.

In reaching its decision, the Tribunal applied the definition of "spouse" under section 5F of the Migration Act 1958 (Cth) and Regulation 1.15A of the Migration Regulations 1994. The Tribunal considered documentary evidence and oral testimony, noting inconsistencies in the review applicant's evidence regarding financial matters and the status of his former spouse. Despite the parties having married in June 2015 and initially living together, the Tribunal found the evidence presented regarding the continuation of a genuine and continuing spousal relationship to be vague. The Tribunal affirmed the delegate's decision not to grant the visa.