Kesserwani (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Provisional) (Class UF) visa, Subclass 309. The applicant sought review of a decision concerning their eligibility for the visa, which requires the applicant to be the spouse or de facto partner of an Australian citizen, permanent resident, or eligible New Zealand citizen. The primary issue was whether the applicant met the criteria for a spouse relationship as defined by section 5F of the Migration Act 1958 (Cth).

The Tribunal was required to determine if the parties were in a genuine and continuing married relationship, as defined by section 5F(2) of the Act. This definition necessitates that the parties are validly married, share a mutual commitment to a shared life as a married couple to the exclusion of others, and live together or do not live separately and apart on a permanent basis. In assessing these requirements, the Tribunal had 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) of the Migration Regulations 1994.

The Tribunal found that the parties were validly married for the purposes of the Act. However, the evidence regarding other aspects of the relationship, particularly the financial aspects, was limited. While the sponsor provided remittances of approximately AUD150 per month to the applicant, who was living with her family in Lebanon due to economic hardship, this was considered in isolation. The Tribunal noted that the assessment of a spouse relationship requires a comprehensive consideration of all matters set out in regulation 1.15A(3), which were not fully explored or evidenced in the material before it.

Consequently, the Tribunal concluded that the matter should be remitted for reconsideration. The direction was that the visa applicant met the criteria under cl 309.211 and cl 309.221 of Schedule 2 to the Regulations, allowing the Minister to consider the remaining criteria for the Subclass 309 visa.