Stothers (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa by a farmer from Pakistan, sponsored by an Australian citizen residing in Melbourne. The core dispute revolved around whether the parties were in a genuine and continuing married relationship as defined by the Migration Act 1958 (Cth). The decision was made by David Crawshay, a Member of the Tribunal.

The legal issues before the Tribunal were whether the parties met the criteria for a married relationship under section 5F of the Act. This required determining if they were validly married, had a mutual commitment to a shared life as a married couple to the exclusion of all others, if the relationship was genuine and continuing, and if they lived together or not separately and apart on a permanent basis. The Tribunal was required to consider all circumstances of the relationship, including financial, social, household, and commitment aspects, as outlined in regulation 1.15A(3) of the Migration Regulations 1994.

The Tribunal found that the parties were validly married in Sri Lanka on 6 August 2015, satisfying section 5F(2)(a). The review applicant, the sponsor, provided clear, cogent, and compelling evidence, presenting as genuine and demonstrating a commitment to a shared life as a married couple to the exclusion of all others. However, the Tribunal noted that it needed to explore whether this view was shared by the visa applicant. The Tribunal considered the financial aspects, the nature of the household, the social aspects, and the nature of the commitment to each other, referencing the criteria in regulation 1.15A(3).

Given the findings, the Tribunal remitted the application for reconsideration. The direction was that the visa applicant met the criteria under clauses 309.211 and 309.221 of Schedule 2 to the Regulations, allowing the Minister to consider the remaining criteria for the Subclass 309 visa.