HOWLADER (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309, by a Bangladeshi national in a relationship with an Australian citizen. The applicant's daughter from a previous marriage was included as a member of her family unit. The visa was refused by the delegate on the grounds that the applicant was not the spouse of the sponsor at the time of the application, as required by cl 309.211(2) of the Migration Regulations 1994. The applicant contended that they were married according to Bangladeshi law and had committed to a life together.

The Tribunal was required to determine whether the applicant and the sponsor were in a married relationship for the purposes of the Act. This involved assessing whether they were validly married, had 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, as stipulated by s 5F(2) of the Migration Act 1958. The Tribunal was directed to consider all circumstances of the relationship, including financial, household, and social aspects, and the nature of their commitment, as outlined in reg 1.15A(3).

The Tribunal found that while the parties were validly married and had provided some evidence of financial support, communication, and visits, there was limited evidence regarding the financial, household, and social aspects of their relationship, as well as the nature of their commitment while living in different countries. The Tribunal noted the significant age gap and the relatively short duration of the relationship. However, the Tribunal also acknowledged that the applicant's daughter was not included in the review application due to an error by the representative. Consequently, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the criteria under cl 309.211 and cl 309.221 of Schedule 2 to the Regulations.