Kazmi (Migration)

The case concerned an applicant for a Partner (Provisional) (Class UF) visa, subclass 309, who claimed to be the spouse of her sponsor. The sponsor was an Australian citizen at the time of the decision, having previously held permanent residency. The primary dispute revolved around whether the applicant and sponsor were in a genuine and continuing married relationship, as required by the Migration Regulations 1994. The decision was made by Brendan Darcy, a Member of the Tribunal.

The legal issues before the Tribunal were whether the applicant was the spouse of her sponsor at the time of the visa application and whether she continued to be so at the time of the Tribunal's decision. This required the Tribunal to determine if the parties were in a valid married relationship, which, according to section 5F of the Migration Act 1958, necessitates a mutual commitment to a shared life as a married couple to the exclusion of all others, a genuine and continuing relationship, and cohabitation or not living separately and apart on a permanent basis. The Tribunal was also directed to consider all circumstances of the relationship, including financial, social, household, and commitment aspects, as outlined in regulation 1.15A(3) of the Migration Regulations 1994.

The Tribunal concluded that the matter should be remitted for reconsideration. While the parties presented evidence of their marriage, including photographs and a Pakistani family registration certificate, and claimed to be first cousins who had known each other since childhood, the Tribunal found it necessary to remit the application. The Tribunal directed that the visa applicant be considered to meet the criteria under clauses 309.211 and 309.221 of Schedule 2 to the Regulations. The application was therefore remitted to the Minister for consideration of the remaining criteria for the Subclass 309 visa.