Koshe (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, Subclass 309, by the first-named visa applicant, who claimed to be the spouse of the review applicant, an Australian citizen. The dispute before the Tribunal was whether the first-named visa applicant and the secondary applicants (her three younger brothers) met the criteria for the visa, specifically concerning the existence of a genuine and continuing spousal relationship between the first-named applicant and the sponsor, and the dependency of the secondary applicants.

The legal issues before the Tribunal were whether the first-named visa applicant was the sponsor’s spouse at the time of application and at the time of decision, and whether she continued to be the spouse of the sponsor. Additionally, the Tribunal was required to be satisfied that the secondary applicants met the relevant criteria at both the time of application and the time of decision. The definition of "spouse" under section 5F of the Migration Act 1958 (Cth) was central, requiring a valid marriage, mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and living together or not living separately and apart on a permanent basis.

The Tribunal found that the parties were validly married in Ethiopia. While acknowledging that evidence of joint finances and household arrangements was limited due to the parties residing in separate countries, the Tribunal considered other factors. It was satisfied that the parties represented their relationship to others as a married one and viewed their relationship as continuous and ongoing. Crucially, the Tribunal addressed and was satisfied by further evidence regarding the death certificates of the first-named applicant's parents, clarifying previous concerns and establishing that the secondary applicants were indeed dependents of the first-named applicant. Based on all circumstances, the Tribunal concluded that the parties had a mutual commitment to a shared life, their relationship was genuine and continuing, and they lived together, thus meeting the requirements of section 5F(2) of the Act.

Consequently, the Tribunal remitted the application for a Partner (Provisional) (Class UF) visa for reconsideration. The direction was that the first-named visa applicant met the criteria for a Subclass 309 visa, and the applications of the second, third, and fourth-named visa applicants were also to be reassessed in accordance with the original application.