Kinikar (Migration)

This matter concerned a review of a decision regarding a Skilled Independent (Permanent) visa (Subclass 187) for an applicant claiming to be a secondary applicant and member of the family unit of the primary applicant, Syed Irfanullah Azeezullah. The review was conducted by the Tribunal.

The central legal issue before the Tribunal was whether the applicant qualified as a "member of the family unit" of the primary applicant, specifically as a "spouse" under the Migration Act 1958 and the Migration Regulations 1994. This required determining if the applicant and the primary applicant were married in a valid marriage, shared a mutual commitment to a shared life to the exclusion of all others, and if their relationship was genuine and continuing, with them living together or not living separately and apart on a permanent basis.

The Tribunal considered the definition of "spouse" under section 5F of the Act, which allows for consideration of financial, household, social aspects, and the nature of commitment to the relationship as outlined in regulation 1.15A. While noting that limited information may have been provided to the Department initially, the Tribunal reviewed a substantial amount of evidence, including a marriage certificate, joint financial documents, police certificates, personal particulars forms, communications, testimonials from witnesses and family members, photographs, and statements from both applicants. The Tribunal concluded that the applicant now met the criteria for being a member of the family unit.

Consequently, the Tribunal remitted the application for reconsideration with the direction that the applicant meets clause 189.311.