Novak (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Provisional) (Class UF) visa, subclass 309. The primary visa applicant sought the visa as the spouse of an Australian citizen, who was the review applicant. The central dispute was whether the parties were in a genuine and continuing spousal relationship as defined by the Migration Act 1958 (Cth) at the time of the visa application and at the time of the Tribunal's decision.

The Tribunal was required to determine if the parties met the criteria for a spousal relationship under section 5F of the Act. This involved assessing whether they were married to each other under a valid marriage, whether there was a mutual commitment to a shared life to the exclusion of others, whether the relationship was genuine and continuing, and whether they lived together or not separately and apart on a permanent basis. The Tribunal also had to consider all circumstances of the relationship, including financial, social, household, and commitment aspects, as outlined in regulation 1.15A of the Migration Regulations 1994.

The Tribunal found that the parties were validly married on 20 August 2014, satisfying section 5F(2)(a). However, based on the evidence presented, including the limited time the review applicant spent in Macedonia with the primary visa applicant and the lack of evidence regarding financial, social, and household aspects of their relationship, the Tribunal concluded that the other requirements for a spousal relationship were not met. The Tribunal noted conflicting and unreliable evidence, leading to a finding that the relationship was not genuine and continuing.

Consequently, the Tribunal affirmed the decision not to grant the Partner (Provisional) (Class UF) visas to the applicants, as they did not satisfy the criteria for the grant of the visa.