RESHAM (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) (Subclass 309) visa by Muhammad Ali KHAN, a Pakistani national, sponsored by Farzana RESHAM, a Pakistani national and Australian permanent resident. The applicant and sponsor, who are maternal cousins, claimed to be married, having solemnised a nikah ceremony in Pakistan. The dispute before the Tribunal was whether the parties were in a valid marriage for the purposes of Australian migration law, and consequently, whether they satisfied the criteria for the visa.

The primary legal issue before the Tribunal was whether the marriage between the applicant and sponsor was valid under Australian migration law. This required determining if the marriage, solemnised in Pakistan, was recognised under the laws of Pakistan. The Tribunal also considered whether the parties were in a de facto relationship, as an alternative basis for the visa application, by examining the financial, household, social, and commitment aspects of their relationship.

The Tribunal reasoned that for a marriage to be recognised under Australian migration law, it must be valid under the laws of the country in which it occurred. While the Tribunal accepted that a nikah ceremony had taken place and was recorded by the Ahmadiyya community, it found that the Government of Pakistan did not recognise marriages of Ahmadiyya individuals under its domestic law. Consequently, the marriage was not considered valid for the purposes of the Act. The Tribunal also found that the parties had not satisfied the requirements for a de facto relationship, noting a lack of cohabitation and insufficient evidence of a committed relationship in the context of the visa criteria.

The Tribunal affirmed the decision not to grant the applicant a Partner (Provisional) (Class UF) visa, as the applicant did not satisfy the criteria for the grant of the visa.