Portelli (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309. The applicant claimed to be the spouse of an Australian citizen. The core dispute revolved around whether the parties met the definition of a spouse for the purposes of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth).

The Tribunal was required to determine if the parties were in a married relationship as defined by section 5F of the Act. This involved assessing whether they were validly married, had 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. 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(3).

The Tribunal found that the parties were validly married under a marriage recognised by the Act. While geographic and visa restrictions, along with pandemic-related issues and the sponsor's health, limited their ability to demonstrate joint ownership of assets or liabilities, the Tribunal was satisfied that the financial aspects of the relationship were spousal in nature. This was evidenced by recent pooling of financial resources, including a joint bank account and shared expenses. The Tribunal concluded that the decision should be remitted for reconsideration.

The Tribunal remitted the applications for Partner (Provisional) (Class UF) visas for reconsideration, directing that the first named visa applicant met the criteria under cl.309.211 and cl.309.221 of Schedule 2 to the Regulations.