Nili (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, Subclass 309. The review applicant, an Australian citizen, claimed to be the spouse of the visa applicant. The central dispute before the Tribunal was whether the couple was in a genuine spousal relationship as defined by section 5F of the Migration Act 1958 (Cth).

The Tribunal was required to determine if the parties met the criteria for a spousal relationship under section 5F(2) of the Act. This involved assessing whether they were validly married, had a mutual commitment to a shared life to the exclusion of all others, and whether their relationship was genuine and continuing, and that they lived together or did not live separately and apart on a permanent basis. In making this assessment, 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 outlined in regulation 1.15A of the Migration Regulations 1994.

The Tribunal found that the parties were validly married, accepting the evidence of a marriage certificate. However, the Tribunal noted that while the visa applicant lived in a house owned by the review applicant, and there was community acceptance of their marriage and some evidence of financial support and emotional support, there was limited evidence presented regarding the household and social aspects of their relationship, particularly given they were living separately. The Tribunal concluded that the matter should be remitted for reconsideration by the Minister, with a direction that the visa applicant met the criteria for the Subclass 309 visa in relation to being the spouse of an Australian citizen.