Khadka (Migration)

This matter concerned an appeal by the applicant, Mr. Khadka, against a decision of the Migration Review Tribunal (MRT) which affirmed the refusal of his Partner (Provisional) (Class UF) visa, subclass 309. The core of the dispute revolved around whether the applicant and his spouse were in a genuine and continuing spousal relationship, and whether their marriage was valid for the purposes of the *Migration Act 1958* (Cth).

The legal issues before the court were whether the Tribunal erred in its assessment of the genuineness and continuing nature of the spousal relationship, and whether it correctly considered the validity of the marriage in light of the evidence presented. Specifically, the court had to determine if the Tribunal's reliance on a certificate issued under section 376 of the *Migration Act* was appropriate, and if its subsequent decision to disregard the information contained within that certificate was legally sound.

The court found that the Tribunal had erred in its approach to the section 376 certificate. While acknowledging the certificate's validity, the Tribunal's subsequent decision to place no weight on its contents, despite acknowledging its relevance to the department's concerns, was problematic. The court reasoned that the Tribunal should have given proper consideration to the information contained within the certificate, even if it ultimately found that the information did not raise issues beyond those already considered in the refusal decision. The court also noted that the evidence, including the testimony of an ex-flat mate, strongly suggested a genuine and long-term commitment to a spousal relationship, and that the marriage was valid.

Consequently, the court ordered that the decision of the Migration Review Tribunal be set aside and remitted to the Tribunal for redetermination according to law.