A recent decision of the Migration Review Tribunal re genuine spouse relationship

PARTNER (PROVISIONAL) (CLASS UF) – SUBCLASS 309 (PARTNER (PROVISIONAL)) –CL.309.211 – GENUINE SPOUSE RELATIONSHIP – The delegate refused to grant the visa on the basis that the applicants did not have a genuine spousal relationship and did not satisfy cl.309.211 of Schedule 2 to the Regulations. The applicants claimed that they met and became online friends as a result of the review applicant’s interest in Palestinian issues. They claimed that the relationship developed online without mutual knowledge of their age gap until the visa applicant proposed marriage. The applicants claimed that the age difference was of no issue.  The review applicant stated that she converted to Islam and travelled to Gaza in order to marry the applicant. The applicants claimed that they had spent time together during two occasions in Gaza and during one occasion in Italy where the review applicant’s family lived.

Held: Decision under review remitted.

The tribunal accepted that the applicants had shared a household on three occasions with their respective families. The tribunal accepted that the review applicant sent the visa applicant money for his birthday and paid for their flights to Italy, and that on the review applicant’s return to Australia, the visa applicant had given her cash to tie her over until her salary was paid. The tribunal accepted the evidence provided to substantiate the social aspects of their relationship, which included a series of photos of the applicants with both sides of their families and detailed statutory declarations which attested to the genuine nature of their relationship. The tribunal noted the extensive communication between the applicants; that the review applicant had travelled to Gaza despite the risks, and that the visa applicant had returned to Gaza rather than seek asylum in Italy. The tribunal accepted that the age difference was of no issue to the applicants. Based on the evidence before it, the tribunal found that the applicants were in a genuine spousal relationship and was therefore satisfied that they met this visa requirement. The tribunal remitted the case to the department for consideration of the remaining visa criteria.