SOLOMON (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309. The review applicant, an Australian citizen, sought to establish that the visa applicant was his spouse, as defined by section 5F of the Migration Act 1958 (Cth). The core dispute revolved around whether the parties were in a genuine and continuing married relationship, meeting the criteria outlined in clauses 309.211(2) and 309.221 of the Regulations. The decision was made by Hugh Sanderson of the Tribunal.

The Tribunal was required to determine if the parties met the definition of a "spouse" under section 5F of the Act, which necessitates a valid marriage, a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and cohabitation or not living separately and apart on a permanent basis. In assessing these requirements, the Tribunal had to consider all circumstances of the relationship, including financial and social aspects, the nature of the household, and the commitment to each other, as detailed in regulation 1.15A(3). Specifically, the Tribunal needed to ascertain if the parties were validly married and if the other elements of a spouse relationship were satisfied.

The Tribunal found that the review applicant had provided evidence of his divorce from a previous wife, confirming he was single at the time of his marriage to the visa applicant. The marriage was found to be valid under Lebanese law and therefore valid for the purposes of the Act. Regarding the other criteria, the Tribunal noted the review applicant's regular financial support of the visa applicant in Lebanon, his purchase of property there to facilitate cohabitation, and his inability to travel due to international restrictions. Despite limited information on financial aspects due to the parties living in separate countries, the Tribunal was satisfied that the financial support and provision of a home indicated a genuine and continuing relationship and a commitment to a shared life as husband and wife.

Consequently, the Tribunal remitted the application for a Partner (Provisional) (Class UF) visa for reconsideration by the Minister. The remittal was made with the direction that the visa applicant met the criteria specified in clauses 309.211 and 309.221 of Schedule 2 to the Regulations.