Hussain (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration to refuse to grant Ms Gulsoom Hussaini, an Afghan national, a Partner (Provisional) (Class UF) visa (Subclass 309). Ms Hussaini applied for the visa as the spouse of Mr Mohammad Hussain, an Australian permanent resident. The delegate refused the visa on the grounds that Ms Hussaini did not satisfy the criteria for a genuine spouse relationship as defined by the Migration Act 1958 (the Act).

The Tribunal was required to determine whether Ms Hussaini and Mr Hussain were in a genuine spouse relationship, considering all the circumstances of their relationship, including the financial, social, and household aspects, and their mutual commitment to each other, as stipulated by the Migration Regulations 1994. The definition of "spouse" under the Act requires a married relationship that is valid for the purposes of the Act, 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.

The Tribunal accepted that Ms Hussaini and Mr Hussain were validly married in Afghanistan, satisfying the requirement of a marriage valid for the purposes of the Act. However, the delegate had found insufficient evidence regarding the financial, household, and social aspects of their relationship, particularly given they were living in different countries at the time of the application. The Tribunal noted the limited evidence presented concerning these aspects, alongside the visa applicant's limited education and illiteracy, and the cultural context of their relationship. The Tribunal also considered oral evidence from Mr Hussain's sister and submissions from the applicants' representative.

Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration. This decision was based on the assessment that while the marriage was valid, the evidence regarding the other aspects of a genuine spouse relationship, as required by the Act and Regulations, was limited and required further examination.