Hristov (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309. The review applicant, an Australian citizen, was the sponsor of the visa applicant. The dispute centred on whether the parties were in a genuine and continuing spouse relationship as required by the Migration Regulations 1994. The Tribunal was tasked with determining if the parties met the criteria for a married relationship under section 5F of the Act.

The primary legal issues before the Tribunal were whether the parties were validly married and, if so, whether they met the other requirements for a spouse relationship, specifically a mutual commitment to a shared life, the genuineness and continuation of the relationship, and whether they lived together or not separately and apart on a permanent basis. The Tribunal was required 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 were validly married in Australia on 16 December 2018. However, the circumstances of the relationship were unique due to the review applicant's progressive brain disease, which had significantly deteriorated his condition since at least 2018, rendering him bed-bound and with significant speech loss. Medical evidence confirmed the visa applicant was pregnant with the review applicant's child. Despite the rapid deterioration of the review applicant's health and the couple's limited ability to engage in typical shared activities, the Tribunal accepted the evidence of the visa applicant's care and support for the review applicant, their mutual commitment, and the fact that the visa applicant was pregnant with the review applicant's child.

Consequently, the Tribunal remitted the application for the Partner (Provisional) (Class UF) visa for reconsideration by the Minister. The remittal was with the direction that the visa applicant met the criteria under clause 309.211(2) and 309.221 of Schedule 2 to the Regulations, indicating that the spouse relationship criteria had been satisfied.