Mootoo (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Provisional) (Class UF) visa made by a Burmese national. The applicant claimed to be the spouse of an Australian citizen, the sponsor. The parties met via international phone call, developed a relationship, and married in Myanmar on 20 June 2019. The sponsor departed Myanmar six days later, and the parties have not met in person since. The Tribunal was required to determine whether the parties were in a genuine and continuing married relationship, as defined by section 5F of the Migration Act 1958 (Cth) and Regulation 1.15A of the Migration Regulations 1994.

The Tribunal's reasoning focused on the definition of a "married relationship" under section 5F(2) of the Act, which requires a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and that the couple live together or not separately and apart on a permanent basis. The Tribunal was satisfied that the parties were validly married in Myanmar, fulfilling the requirement of section 5F(2)(a). However, the Tribunal also had to consider all the circumstances of the relationship, including the financial and social aspects, the nature of their household, and their commitment to each other, as outlined in Regulation 1.15A(3). The Tribunal noted the limited opportunities for assessing these aspects due to COVID-19 travel restrictions, political unrest, the sponsor's short stay in Myanmar, and the lack of in-person contact since the wedding. Furthermore, the Tribunal gave limited weight to statements from church members in Australia and noted the absence of supporting statements from family members.

Given the limited evidence available to fully assess the remaining criteria for a genuine and continuing married relationship, the Tribunal determined that the application should be remitted to the Minister for reconsideration. The Tribunal directed that the visa applicant meets the criteria under clauses 309.211 and 309.221 of Schedule 2 to the Regulations, allowing for further assessment of the relationship's genuineness and continuation by the Department.