Mohammad (Migration)

This matter concerned an appeal by a visa applicant, a Bangladeshi national, against the refusal of her application for a Partner (Provisional) (Class UF) visa, subclass 309. The applicant sought to establish a spousal relationship with Mr Tamim Mohammad, an Australian citizen. The primary issue before the Tribunal was whether the applicant met the criteria for being the spouse of an Australian citizen at the time of the visa application and at the time of the Tribunal's decision, as required by the Migration Regulations 1994.

The Tribunal was required to determine whether the parties were in a valid married relationship, which necessitates that they are married to each other under a marriage valid for the purposes of the Act, share a mutual commitment to a shared life as a married couple to the exclusion of all others, have a genuine and continuing relationship, and live together or do not live separately and apart on a permanent basis. In assessing these elements, 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 detailed in regulation 1.15A(3).

The Tribunal noted that while the parties provided documentation indicating a marriage contract and registration on 5 January 2015, the sponsor was in Australia on that date. The sponsor explained this by stating he gave oral consent via telephone. Despite this discrepancy, the Tribunal found that the parties had provided consistent evidence reflecting a sound knowledge of each other’s families and health conditions, did not live separately and apart on a permanent basis, had been married for nearly nine years, viewed their relationship as long-term, and were in a genuine and continuing spousal relationship. Consequently, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the criteria under cl 309.211 and cl 309.221 of Schedule 2 to the Regulations.