Sawmhal (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration to refuse a Partner (Provisional) (Class UF) visa (Subclass 309) to Ms Ave, a national of Myanmar. The visa applicant's sponsor was Mr Biak Lian Bawi Sawmhal, an Australian permanent resident and national of Myanmar. The core of the dispute was whether the applicants were in a genuine and continuing spouse relationship, as defined by the *Migration Act 1958* and the *Migration Regulations 1994*.

The court was required to determine whether the visa applicant satisfied the criteria for a Subclass 309 visa, specifically whether she was the spouse of the review applicant at the time of application and at the time of the decision. This involved assessing whether the parties were validly married and, if so, whether they met the further requirements of a spouse relationship, including mutual commitment to a shared life, the genuineness and continuation of the relationship, and whether they lived together or not separately and apart on a permanent basis. The court also had to consider the financial and social aspects of the relationship, the nature of their household, and their commitment to each other, as outlined in the relevant regulations.

The court found that the applicants were validly married in Thailand on 7 August 2015, a fact accepted by the Tribunal based on the provided marriage certificate. However, the delegate had refused the visa on the basis that the applicants did not satisfy the criteria for a genuine spouse relationship. The Tribunal, in its reconsideration, was tasked with assessing the various factors that constitute a spouse relationship under section 5F of the Act and regulation 1.15A of the Regulations. The decision notes that the applicants had known each other since childhood and that the visa applicant had applied for the Partner visa on 29 March 2018. The Tribunal ultimately remitted the matter for reconsideration, indicating that further assessment of the relationship's genuineness and continuation was required.