Semachew (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, Subclass 309. The visa applicant, Mr Abebe Bezie Sisay, claimed to be the spouse of the review applicant, Ms Eyrau Luel Semachew, an Australian Permanent Resident. The core dispute revolved around whether the parties were in a genuine and continuing married relationship at the time of the visa application and at the time of the decision, as required by the Migration Regulations 1994. The decision was made by Cheryl Cartwright, a Member of the Tribunal.

The legal issues before the Tribunal were whether the visa applicant was the spouse of the review applicant, satisfying the criteria under cl 309.211(2) and 309.221 of Schedule 2 to the Regulations. This required determining if the parties were in a married relationship, which, pursuant to s 5F of the Migration Act 1958, necessitates a valid marriage, a mutual commitment to a shared life as a married couple to the exclusion of all others, a genuine and continuing relationship, and cohabitation or not living separately and apart on a permanent basis. The Tribunal was required to consider all circumstances of the relationship, including financial, household, social aspects, and the nature of their commitment to each other, as outlined in r 1.15A(3) of the Regulations.

The Tribunal considered evidence of events both before and after the visa application date, noting that subsequent events can logically demonstrate facts relevant to the issue at the time of application. While the parties had a period of cohabitation in Sudan between January 2020 and March 2021, and the review applicant had visited Ethiopia for their marriage in January 2016, the Tribunal's findings indicated that the parties had not met all the criteria for a genuine and continuing spouse relationship at the relevant times. The Tribunal concluded that the matter should be remitted for reconsideration.

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