Hosain (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, Subclass 309. The applicant sought review of a decision concerning their eligibility for the visa, which requires the applicant to be the spouse of an Australian citizen or permanent resident. The core of the dispute revolved around whether the applicant and the sponsor were in a genuine and continuing married relationship, as defined by the Migration Act 1958 (Cth) and its regulations.

The Tribunal was required to determine whether the parties met the definition of "spouse" under section 5F of the Act, which necessitates a valid marriage, a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and that the couple live together or do not live separately and apart on a permanent basis. In assessing these criteria, the Tribunal had to consider all circumstances of the relationship, including financial, household, and social aspects, as well as the nature of their commitment to each other, as outlined in regulation 1.15A(3) of the Migration Regulations 1994. The Tribunal also considered evidence of events subsequent to the visa application date, provided such evidence logically tended to show the existence or non-existence of facts relevant to the issues.

The Tribunal found that, on balance and after considering the matters set out in regulation 1.15A, the requirements of section 5F(2) of the Act were met at both the time of the visa application and the time of the Tribunal's decision. Consequently, the Tribunal was satisfied that the visa applicant met the criteria under clauses 309.211 and 309.221 of Schedule 2 to the Regulations. The Tribunal therefore remitted the application for the Subclass 309 visa to the Minister for reconsideration, with a direction that the visa applicant met these specific criteria.