Qurbani (Migration)

This matter concerned an application for a Partner (Provisional) visa (Subclass 309) made by a 25-year-old woman from Pakistan, sponsored by her 28-year-old Australian citizen husband. The dispute before the Tribunal was whether the applicants were in a genuine and ongoing spousal relationship, as required by the Migration Regulations 1994.

The Tribunal was required to determine whether the parties met the criteria for a spouse relationship under section 5F of the Migration Act 1958 and clause 309.211(2) and 309.221 of Schedule 2 to the Regulations. This involved assessing whether they were married to each other under a marriage valid for the purposes of the Act, whether there was a mutual commitment to a shared life as a married couple to the exclusion of all 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 the 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 according to their cultural traditions, with a Nikah ceremony in April 2015 and a Rukhsathi ceremony in May 2018. The sponsor visited Pakistan and lived with the applicant for 68 days after the Nikah, during which time they formalised their marriage. Since the sponsor's departure in June 2015, they had maintained contact via social media and telephone. The Tribunal accepted that the parties were married to each other under a marriage valid for the purposes of the Act.

Given these findings, the Tribunal remitted the application for reconsideration by the Minister, directing that the visa applicant met the criteria for a Subclass 309 visa concerning clauses 309.211, 309.212, and regulation 2.03A.