Kakar (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309. The applicant sought review of a decision concerning whether the couple were in a genuine spousal relationship as defined by section 5F of the Migration Act 1958 (Cth). The Tribunal was required to determine if the parties met the criteria for a spousal relationship, which necessitates a valid marriage, a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and cohabitation or not living separately and apart on a permanent basis.

The Tribunal considered whether the parties were validly married, noting that a Nikah ceremony on 13 October 2017 was accepted as evidence of a valid marriage for the purposes of the Act. However, the Tribunal also had to assess the other requirements for a spousal relationship, which involves considering all circumstances, including the financial and social aspects of the relationship, the nature of the household, and the commitment to each other, as outlined in regulation 1.15A(3) of the Migration Regulations 1994. These matters are effectively questions that must be answered in forming an opinion about the genuineness and continuing nature of the relationship.

Given that the validity of the marriage was established, the Tribunal determined that the appropriate course was to remit the application for reconsideration. The Tribunal directed that the visa applicant met the criteria under clause 309.211 of Schedule 2 to the Regulations, indicating that further assessment of the remaining criteria for the Subclass 309 visa was required.