Ntumba (Migration)

This matter concerned an appeal by a visa applicant against a decision to affirm a refusal of a Partner (Provisional) (Class UF) visa, subclass 309. The review applicant, an Australian citizen, claimed to be the spouse of the visa applicant. The core dispute revolved around whether the parties were in a genuine and continuing spouse or de facto relationship, as required by the *Migration Act 1958* (Cth) and associated regulations. The decision was made by Brygyda Maiden.

The legal issues before the Tribunal were whether the visa applicant was the spouse or de facto partner of the review applicant at the time of the visa application and at the time of the decision. This required the Tribunal to consider the definitions of "de facto partner" and "spouse" under sections 5CB and 5F of the *Migration Act*, respectively. The Tribunal was obliged to have regard to all the circumstances of the relationship, including financial and social aspects, the nature of the household, and the commitment to each other, as outlined in regulations 1.09A(3) and 1.15A(3).

The Tribunal accepted that the parties were legally married, based on a marriage record from the Democratic Republic of Congo and a document from the visa applicant's parents. However, despite evidence of some financial support, a lengthy relationship duration, common interests, emotional support, and some future plans, the Tribunal found these factors were outweighed by concerns. Specifically, there was limited evidence of companionship and emotional support beyond voluminous, untranslated chat records. Neither party could articulate the other's address, despite claiming to live together and the review applicant allegedly paying rent. Physical contact was limited to a single month in 2015, with no substantial evidence of intent to travel to see each other outside of pandemic-related restrictions. Furthermore, there was a lack of evidence from friends and acquaintances regarding the nature of the relationship, and concerns about the parties' joint future plans, as the visa applicant seemed unaware of the review applicant's savings for land purchase.

Consequently, the Tribunal was not satisfied that the parties had a mutual commitment to a shared life to the exclusion of all others, a genuine and continuing relationship, or that they lived together and did not live separately and apart on a permanent basis. Therefore, the Tribunal affirmed the decision under review.