Kaur (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309. The applicant sought to establish a de facto relationship with the sponsor, who was an Australian citizen. A key issue arose from the fact that the parties married while the sponsor was still awaiting a divorce from a previous marriage, raising questions about the validity of their subsequent marriage for the purposes of the Act. The decision was made by Mary Urquhart.

The court was required to determine whether the parties were in a spouse or de facto relationship as defined by the Migration Regulations 1994. Specifically, it needed to ascertain if the marriage between the applicant and sponsor was valid for the purposes of the Act, given that the sponsor had not yet obtained a decree absolute for her previous divorce at the time of the marriage ceremony. The court also had to consider the broader requirements of a genuine and continuing relationship, including aspects such as mutual companionship, emotional support, and financial commitments, as outlined in regulation 1.15A(3).

The court found that the marriage ceremony, which took place on 18 March 2018, was not valid for the purposes of the Act because the sponsor was still legally married to her previous husband at that time, with her divorce only becoming absolute on 14 April 2018. Consequently, the parties could not satisfy the definition of a "spouse" under section 5F of the Act. However, the court indicated that the application should be remitted to the Minister for reconsideration of the remaining criteria for a Subclass 309 visa, with a direction that the applicant met certain specified criteria, including those relating to spouse or de facto partner status and regulation 2.03A.