Tran (Migration)

The Administrative Appeals Tribunal (AAT) considered an appeal by a review applicant concerning a Partner (Provisional) (Class UF) visa, subclass 309. The core of the dispute revolved around whether the review applicant's sponsorship met the requirements of the Migration Regulations 1994, particularly in light of the sponsor's previous sponsorships of two former spouses. The Tribunal had before it the Department of Home Affairs file, evidence and submissions presented on review, movement records, and files relating to the sponsor's prior visa applications.

The legal issues before the Tribunal were whether the parties were validly married for the purposes of the Act, whether they were in a genuine and continuing spousal relationship, and whether the sponsorship limitation under regulation 1.20J should be waived, with clause 309.222 requiring the sponsorship to be approved and in force. The Tribunal was required to assess these matters in accordance with the definition of "spouse" in 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.

The Tribunal reasoned that the parties had provided a copy of their marriage certificate, establishing a valid marriage. Furthermore, the Tribunal found that the parties were currently in a genuine spousal relationship, evidenced by the long-term nature of their relationship, their engagement, wedding ceremony, and registration of their marriage. Despite the sponsor having sponsored two previous spouses, the Tribunal concluded that compelling circumstances existed to approve the review applicant's sponsorship.

Consequently, the Tribunal remitted the application for the Partner (Provisional) (Class UF) visa for reconsideration by the Minister, directing that the visa applicant met the criteria under clauses 309.211, 309.213, 309.221, and 309.222 of Schedule 2 to the Regulations.