Kolora (Migration)

The Administrative Appeals Tribunal considered whether the applicant and her sponsor, Mr Rashid Ali, were in a genuine de facto relationship for the purposes of a spousal visa application. The applicant claimed to be married to Mr Ali, having undergone an Islamic wedding ceremony on the day of her arrival in Australia. However, Mr Ali was already married to another woman in Australia and was significantly older than the applicant, being her uncle by marriage.

The Tribunal was required to determine if the applicant met the criteria for a de facto partner under the Migration Act 1958 (Cth) and associated Regulations. Specifically, the court needed to assess whether the applicant and Mr Ali had a mutual commitment to a shared life, whether their relationship was genuine and continuing, if they lived together or did not live separately on a permanent basis, and if they were not related by family. The Tribunal also had to consider additional criteria under Regulation 2.03A, which require an assessment of all circumstances of the relationship, including financial and social aspects, the nature of their household, and their commitment to one another.

The Tribunal reasoned that while Mr Ali was the applicant's uncle by marriage, this relationship did not fall within the definition of "related by family" under section 5CB(4) of the Act, thus allowing for an assessment of de facto partner status. However, the Tribunal noted that Mr Ali was still legally married to another woman, meaning the applicant could not be considered his "spouse" under Australian law. The Tribunal then indicated that it would proceed to consider the specific matters outlined in Regulation 1.09A(3) to determine if the applicant and Mr Ali were in a genuine and continuing de facto relationship, as required by the visa provisions.