MOHAMMADI (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309. The applicant sought review of a decision concerning the genuineness of their spousal relationship with the sponsor, who was an Australian citizen. The Tribunal was required to determine whether the applicant was the spouse of the sponsor as defined by section 5F of the Migration Act 1958 (Cth).

The primary legal issue before the Tribunal was whether the relationship between the applicant and the sponsor met the definition of a "spouse" under section 5F of the Act. This definition requires that the parties be married to each other under a marriage valid for the purposes of the Act, demonstrate a mutual commitment to a shared life as a married couple to the exclusion of all others, that the relationship be genuine and continuing, and that the couple live together or not separately and apart on a permanent basis. The Tribunal was also required to consider the matters set out in regulation 1.15A of the Migration Regulations 1994, which include the financial aspects, nature of the household, social aspects, and the nature of the commitment to each other.

The Tribunal considered the extensive documentary and oral evidence presented, including approximately 250 photographs, details of financial transfers between the parties and the applicant's mother, flight plans indicating travel between Australia and India, and property tenancy registrations. The Tribunal found that the sponsor was an Australian citizen and that the applicant met the criteria under clauses 309.211 and 309.221 of Schedule 2 to the Regulations. Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that the visa applicant met these specified criteria.