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CATCHWORDS: Review of visa refusal - Subclass 309 - definition of spouse - genuine and continuing relationship

DECISION: The Tribunal remits the application made by the visa applicant for a Partner (Provisional) (Class UF) visa to the Department of Immigration and Multicultural and Indigenous Affairs for reconsideration with the direction that the visa applicant meets the following criteria for a subclass 309 (Spouse (Provisional)) visa:

EL KHOURY, Jani Rizk [2002] MRTA 6791 (20 November 2002)

EL KHOURY, Jani Rizk [2002] MRTA 6791 (20 November 2002)
Last Updated: 3 April 2003

[2002] MRTA 6791

CATCHWORDS: Review of visa refusal - Subclass 309 - definition of spouse - genuine and continuing relationship

REVIEW APPLICANT: Jani Rizk El Khoury

VISA APPLICANT: Nina Batach

TRIBUNAL: Migration Review Tribunal

PRESIDING MEMBER: Janis Butt

MRT FILE NUMBER: N01/03268

DEPT FILE NUMBER: OSF2000/020531

DATE OF DECISION: 20 November 2002

AT: Canberra

DECISION: The Tribunal remits the application made by the visa applicant for a Partner (Provisional) (Class UF) visa to the Department of Immigration and Multicultural and Indigenous Affairs for reconsideration with the direction that the visa applicant meets the following criteria for a subclass 309 (Spouse (Provisional)) visa:

* clause 309.211 of Schedule 2

* clause 309.221 of Schedule 2

* regulation 1.15A.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the then Minister for Immigration and Multicultural Affairs (the delegate) to refuse to grant a Partner (Provisional) (Class UF) visa. Ms Nina Batach (the visa applicant), a national of Lebanon, born on 10 June 1969, applied for a Partner (Provisional) (Class UF) visa on 12 October 2000. The delegate's decision to refuse to grant the visa was made on 11 April 2001.

JURISDICTION AND STANDING

2. Mr Jani Rizk El Khoury (the review applicant), the husband of the visa applicant, lodged a valid application for review with the Tribunal on 12 June 2001. The decision is reviewable by the Tribunal and the application for review has been properly made by a person with standing to apply for review.

LEGISLATION AND POLICY

3. The Migration Act 1958 (the Act) and the various Regulations made under that Act, principally the Migration Regulations 1994 (the Regulations), provide for different classes of visas, and the criteria for the grant of visas. In reaching a decision, the Tribunal is bound by the Act, the various Regulations and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural and Indigenous Affairs (the Department). The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy.

4. The Tribunal has the power to affirm, vary or set aside a decision to refuse to grant a visa. It also has the power to remit an application for a visa to the Department for reconsideration. Such a remittal may be accompanied by directions that a visa applicant meets one or more of the criteria for a visa. It is then a matter for the Minister or a delegate to consider any remaining criteria. A review by the Tribunal is generally limited to a consideration of whether a visa applicant meets one or more essential criteria, with the application remitted or the decision affirmed on that basis.

5. The criteria and policy immediately relevant to this review are:

Legislation:

Regulation 1.15A of the Regulations.

Part 309 of Schedule 2 to the Regulations.

Policy:

Procedures Advice Manual 3: regulation 1.15A - Interpretation - Spouse

Procedures Advice Manual 3: Division 1.4B - Sponsorship and Nomination: Spouse, Prospective Spouse and Interdependency visas.

Cases:

Nassouh v Minister for Immigration and Multicultural Affairs [2000] FCA 788

Bretag v Minister for Immigration, Local Government and Ethnic Affairs (Unreported, Federal Court, Loughlin J, 29 November 1991)

Minister of State for Immigration, Local Government and Ethnic Affairs v Dhillon (Federal Court, 8 May 1990, unreported)

Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139

Tran v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Carr J, unreported, Judgement No 601 of 1997).

Lynham v the Director-General of Social Security (1983) 52 ALR 128.

6. The Tribunal generally has regard to the Regulations as they stood at the time of a visa application. However, subsequent amendments may apply in some circumstances.

EVIDENCE

7. The Tribunal has the following documents:

T1 - MRT case file N01/03268, folio numbered 1- 145.

D1 - Departmental case file OSF2000/020531, folio numbered 1- 95.

Application for spouse visa

8. The visa applicant lodged an application for a spouse visa on 12 October 2000. Mr Jani Rizk El Khoury (the review applicant), an Australian citizen, who was born on 18 April 1965 in Assoun, Lebanon signed the sponsorship form in connection to this application for a spouse visa. The evidence on file indicates that the visa applicant and the sponsor met each other in August 2000 during the sponsor's visit to Lebanon to look for a wife. The parties became engaged on 2 September 2000 and married on 20 September 2000 at a Greek Orthodox Church in Lebanon. The Department's movement records show that the review applicant returned to Australia from Lebanon on 14 October 2000.

9. The evidence on file indicates that information about the date and place where the parties met was inconsistent. The delegate also had concerns about this case as an application had been lodged in the visa applicant's name for a subclass 686 visa for surrogacy purposes on behalf of an Australian couple on 12 January 1998. This application was refused on 13 March 1998 on the basis that a genuine visit was not intended, that there was a high risk that she would overstay her visa and that paid surrogacy could be considered work and therefore, a breach of visa conditions.

10. On 24 February 2000, the delegate stated that Malake Saraty, an Australian citizen, together with the visa applicant, approached the Department in Beirut and sought information as to how the visa applicant could enter Australia as a surrogate mother as Malake had cancer and could not bear children. The Department advised them that medical treatment visas specifically precluded surrogate arrangements and that a normal visitor visa could not be granted for that purpose. As a consequence, the delegate was concerned about the visa applicant's intentions and created a Local Warning Record within the Embassy to alert any decisionmaker to ensure that any future visa application was scrutinised carefully.

11. The delegate provided details of this visit in his decision on the spouse visa application as this had led him to doubt the visa applicant's bona fides in marrying the sponsor.

Interview in Beirut with the visa applicant

12. On 6 December 2000, a preliminary interview was held between a female member of the staff in Beirut and the visa applicant. The following points were established at the interview:

* the visa applicant knew the review applicant's birthplace, star sign, when he moved to Australia, that he had not been in a de facto, fianc´┐Że or marriage relationship before and that he lives with his brother in Australia who is married with 6 children.

* the review applicant visited Lebanon in May 2000 to look for a wife. The parties met at her house on 25 August 2000. The review applicant visited her regularly every couple of days but, at times, every day. The review applicant asked the visa applicant to marry him on 2 September 2000 at her nephew's birthday party.

* the visa applicant visited the review applicant's mother and sister who reside in Lebanon once prior to marriage.

* the visa applicant plans to live with the review applicant, his brother and family in Australia.

* the wedding was held in a church on 20 September 2000 and 200 people attended. The parties and close family (10 people) went to a hotel to cut the cake afterwards. The parties stayed at the hotel for 3 days.

* the parties lived at the review applicant's parent's place until the review applicant returned to Australia a month after wedding as he needed to study. The visa applicant is still living there with her husband's parents.

* when the interviewer commented that that is a short time to get to know each other, the visa applicant said in reply that he is the type of person you would get to know straight away.

* the visa applicant knew that the review applicant is blind but did not know whether he was blind from birth. The interviewing officer was concerned that this was information the visa applicant ought to know if they were planning to have children. The visa applicant said that these matters were up to God.

* when asked, the visa applicant stated that the review applicant shaves, toilets and eats by himself and that she plans to be "his eyes".

* the visa applicant stated that the review applicant will support her although she may be working. The review applicant is receiving disability pension.

* the parties talk to each other every 2 weeks and have a common language in Arabic.

* the interviewing officer advised the visa applicant that the Embassy had information that she planned to come to Australia and become a surrogate mother for Malake Saraty. The visa applicant was shocked at this information and asked the interviewing officer to repeat the question:

how can I do such a thing when I was still a virgin, why would I get married if this be the case. I can't believe people would say these things, how could I go there and do such a thing on a visit visa, she lives next to our home and I told her all about my problems but I never thought that she would say such information.

* when asked who signed the visitor visa application form, the visa applicant stated she signed the form because her brother (who is a lawyer) said all is okay but "she swears to God that she had no idea". She stated:

this is all lies, I could never do such a thing, her parents would kill her for such actions, we are simply people from a village.

* when asked by the interviewing officer asked whether this is a contrived marriage, the visa applicant said that:

this is not true, I loved my husband when I met him, I don't care about Australia, I care about him. I didn't and wouldn't marry him if it was the case.

* when asked whether she would divorce the review applicant if things did not work out, the visa applicant stated that:

we can't divorce and I wouldn't do so, none of family would ever divorce. I have sworn by religion and I could have married anyone if that is the case but love is more important.

Interview with the review applicant in Rockdale Office

13. In view of the delegate's concerns about the genuineness of the relationship in the light of the visa applicant's application for a Medical Treatment visa, the Rockdale Office of the Department was requested to interview the review applicant. On 5 February 2001, an interview was held between the Rockdale office of the Department and the review applicant. The interview officer states that the review applicant communicates verbally, can type and uses braille.

14. The following responses are recorded:

* he entered Australia in 1987 for a holiday and to have an eye operation, which he has not yet undertaken. He became a permanent resident in 1988 and an Australian citizen in 1999.

* he was born blind as a result of medical accident at birth, manages well and has no special needs.

* he does not work but has received benefits from the Government since 1998 and his brothers also provide support.

* he has completed courses in computer databases, communication, information technology, Occupational, Health and Safety and business management.

* he lives with his brother (plus brother's wife and 6 children) and his brother's wife looks after him.

* the visa applicant will live with him in the flat at the back of the brother's place.

* he has 2 married brothers and 1 married sister in Australia but he himself has never married before and has never lived in a de facto relationship.

* the visa applicant has 5 sisters and 3 brothers all living in Lebanon.

* the visa applicant has had no previous relationships.

* the visa applicant may have friends in Australia but the review applicant does not know them.

* she has lived with his parents according to tradition since the parties' marriage.

* he understood that a friend of the visa applicant lodged an application for a visitor visa for the visa applicant in March 1998. He does not know this friend or why she did not come to Australia then.

* in explaining the background to his relationship with the visa applicant, the review applicant stated that he went to Lebanon for 5 months to see his parents, whom he had not seen for 13 years and also, find a wife. He was accompanied by his sister-in-law and her son but they returned to Australia before him.

* the review applicant's friend, Nabil, introduced him to Toufic, one of the visa applicant's brothers, who invited him to the nephew's birthday party which was on 22 August 2000. This is where the parties met and spent time together. The review applicant was very impressed with the visa applicant and the way she treated him. He subsequently made enquiries about her and was told that she was from a good family.

* the review applicant returned to the house the next day and again on 25 August 2000 to ask her family for her hand in marriage. The parties got engaged on 2 September 2000 and married on 20 September 2000.

* when the interviewing officer showed concern about the length of time the parties had to get to know each other, the review applicant stated there was no need to get to know her any better because he knew the type of person that she is. He said that

when he shared his feelings with her, he said that he could tell from her reaction that she was the one for him.

* they married in a Church and then cut the cake at the hotel. A dowry was not paid as it was a Christian marriage.

* the last time the review applicant saw the visa applicant before his return to Australia was on 21 October 2000.

* the review applicant loves the way the visa applicant sings, talks and jokes with him. He knows that the review applicant respects him, loves him and feels comfortable with him.

* both parties are religious and enjoy the same sort of hobbies.

* he telephones the visa applicant twice a week and she telephones him occasionally.

* he wants to work with his brothers in their tiling company, doing office work with computers.

* the parties have discussed having children but have not decided how many they would like. He said if the visa applicant does not enjoy living in Australia, she can go back to Lebanon.

* when advised by the interviewing officer about the possibility of the visa applicant using him to come to Australia, the review applicant replied that "he did not think so" because

she told him that if he wanted to stay in Lebanon that she would live with him there and that she was prepared to live where ever he wants to be.

15. The delegate stated that the visa was not granted on the basis that the visa applicant failed to meet the definition of `spouse' as set out in regulation 1.15A. The delegate found that:

* the parties' relationship was short.

* there were no evidence of the couple at social gatherings other than the wedding.

* there was very little evidence to show correspondence between the parties.

* the phone bills do not provide evidence of communication between the parties.

* the claims made by the visa applicant and review applicant are inconsistent.

16. In short, due to the apparent lack of evidence and some inconsistencies between the statements of the parties, the delegate concluded that they were not in a genuine and continuing relationship and that they do not have a mutual commitment to a shared life together. The delegate was of the view that the review applicant is genuine but had doubts as to whether the visa applicant is genuinely committed. The delegate questioned the visa applicant's credibility, the bona fides of the parties' marriage and the visa applicant's intentions in entering Australia. In addition, the delegate was concerned that the person who applied for the spouse visa in 2000 was the same person who approached the office with Malake Saraty in 1998.

Review application

17. A summary of the review applicant's claims for review are as follows:

* the visa applicant provided all relevant information to the delegate to the best of her knowledge and did not attempt to mislead by omission.

* she did not go to the Department in Beirut with Malake Saraty in February 2000 but that Malake Saraty went with her brother and the decision maker mistook her for someone else.

* the visa applicant's brother filled in the application form for a visitor visa in 1998 and the visa applicant had no knowledge of what was in the 1998 application.

* the review applicant resides in his brother's (Azar) house and the phone bills are in Azar's name as he is the owner of the house.

* the visa applicant is living at the review applicant's parent's place according to tradition.

18. In addition, the review applicant has supplied the following evidence in support of his case:

* a statutory declaration from a lawyer, who is the brother of Malake Saraty, stating that the visa applicant signed the visitor visa application form without reading it because she completely trusted them as she worked for them. The declarant also stated that the visa applicant did not personally appear with him and his sister at the Embassy and that "she has good conduct and good reputation" and was an orphan.

* copies of remittances evidencing money transfers totalling AUD$9,250 covering the period from December 2000 to March 2002.

* phone bills covering the period from December 2000 to February 2002.

* evidence of their purchase in joint names of a lounge suit, bedroom suit, vacuum and electrical equipment in both their names.

* photographs of the parties' marriage and also with relatives and friends.

* a medical report from a psychiatrist providing details of the review applicant's personal history and that the review applicant's brother and wife are unwell and can no longer take care of him, that he is not confident to live on his one and that he suffers from anxiety and poor sleep but this will lessen once he is secure. The psychiatrist states that it is a matter of urgency that consideration be given to bringing his wife to Australia.

* attestation by the Mayor of Kousba dated 24 March 2002 that the parties are married and that the visa applicant currently lives with the review applicant's parents.

* declaration from the Parish Priest stating that his spiritual daughter is the visa applicant, and that the visa applicant was in `free estate' before her marriage to the review applicant.

* attestation from another Parish Priest stating that the parties were solemnised in marriage and that they both lived at the review applicant's parent's home until 20 October 2000.

* a declaration from the local telephone company in Lebanon that the visa applicant telephones the review applicant on telephone (1).

* a declaration from Elias Khoury that the review applicant gave him money, letters and clothing to give to the visa applicant when he went to Lebanon in March 2002. He also declared that the visa applicant asked him many questions about the review applicant's well-being and he stated that "I witnessed a genuine love for her husband".

* statutory declaration from Mr. Ross Cameron, MP, who has known the Khoury family for 6 years. He declared that the `granny flat' has been furnished for the parties and that the review applicant is sincere in desiring to live with the visa applicant as husband and wife.

* the review applicant's cousin stated in a letter that the parties plan to live in the `granny flat'.

FINDINGS AND REASONS

19. Under section 360(2) of the Migration Act 1958, the Tribunal considered that it could decide the review in the visa applicant's favour on the basis of material before it. Therefore, there was no need for the review applicant to be invited to appear before the Tribunal to give evidence and present arguments arising in relation to the decision under review

20. At the time the visa application was lodged Partner (Provisional) (Class UF) contained the following subclasses: subclass 309 (Spouse or Partner) and subclass 310 (Interdependency (Provisional). The only subclass in respect of which any claims have been advanced is subclass 309. There is no evidence to suggest that the visa applicant meets the key criteria for a subclass 310 visa

21. The central issue before this Tribunal is whether the parties were in a genuine and continuing relationship at the time of application and are they still at the time of this decision? Did they then and do they now share a commitment to live their lives together as husband and wife to the exclusion of all others? If they are living separately now is that on a permanent or temporary basis?

22. At the time of application the visa applicant was validly sponsored by Mr Jani Rizk El Khoury who is an Australian citizen. Based on the information before the Tribunal, neither the visa applicant nor the review applicant has previously been involved in a sponsorship or nomination.

23. The visa applicant and the review applicant were married to each other in Assoun, Lebanon on 20 September 2000. At the time of application the visa applicant and the sponsor were married to each other under a marriage that is recognised as valid for the purposes of the Act. At the time of decision, they are still married to each other. The Tribunal, therefore, must now consider whether the visa applicant was the `spouse' of the sponsor at the time of application and continues to be the `spouse' of the sponsor at the time of decision.

Spousal relationship

24. Regulation 1.15A contains the tests to be applied to determine whether one person is the `spouse' of another person, whether in a married or a de facto relationship. In Nassouh v Minister for Immigration and Multicultural Affairs [2000] FCA 788 the Federal Court considered this provision of the Regulations. The Court held that subregulation 1.15A(3) set out mandatory considerations. Accordingly, the Tribunal, in forming an opinion whether a married relationship or de facto relationship exists must take into account the considerations set out in subregulation 1.15A(3). These considerations relate to all of the circumstances of the relationship including, in particular, the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and nature of the persons' commitment to each other.

25. Having regard to the considerations for a spousal relationship set out in regulation 1.15A at the time of application and at the time of decision, the evidence and issues are discussed under the following headings

The financial aspects of the relationship

26. There is no evidence of any joint bank accounts or property. However, a lounge, bedroom suit, a vacuum and electronics were purchased in the names of both parties. The review applicant is in receipt of a disability pension and does not currently work. He lives with his brother and family who assist him financially in supporting the visa applicant in Lebanon. The review applicant's brothers are prepared to lodge an Assurance of Support in their favour. The review applicant has also indicated that he may work in his brother's business in Australia.

27. The visa applicant resides with the review applicant's parents and has not worked since her marriage. She relies upon the review applicant for financial support.

The nature of the household

28. The review applicant lives in Australia and the visa applicant in Lebanon. The parties have not yet had a chance to establish a household but plan to live in the `granny flat' at the back of the review applicant's brother's property.

The social aspects of the relationship

29. The parties' marriage was registered in Syr and acknowledged by the Mayor of Assoun. They are not required to declare their marriage to any other authority. There is evidence before the Tribunal from public officials, priests, family and friends declaring that the parties are a married couple.

30. The delegate was satisfied that the review applicant is in a genuine and continuing relationship with the visa applicant. A friend declared that the visa applicant cares for the review applicant.

31. The Tribunal notes that the visa applicant is living with the review applicant's family. It is assumed, therefore, that the review applicant's family has accepted the visa applicant as part of their family.

The nature of the persons' commitment to each other:

32. While the parties married after knowing each other only one month, the parties have now been married for over 2 years. Money transfers from the review applicant to the visa applicant are on file and there has been ongoing communication by telephone during their period of separation.

33. The review applicant certainly draws emotional support from the visa applicant and she in turn appears to be committed to this relationship. Moreover, a statutory declaration by a parliamentarian who has known the El Khoury family for 6 years, states that the review applicant is sincere in desiring to live with the visa applicant as husband and wife and a friend of the review applicant who gave money, letters and clothing to the visa applicant in March 2002 states that the visa applicant loves her husband.

34. The parties have indicated their wish to have children together.

Whether there is a mutual commitment to a shared life as husband and wife to the exclusion of all others.

35. The Tribunal does not have any adverse information and has no reason to believe that either one of the parties may have a concurrent spouse relationship with any other persons at the time of application or this review.

Whether the relationship is genuine and continuing

36. Evidence shows that the parties have only lived together for approximately 1 month since they married and the review applicant returned to Australia one month after their marriage. The Tribunal accepts this as it is not socially or religiously acceptable that the parties live together before marriage

37. While the review applicant has not visited the visa applicant since his return to Australia in October 2000, there is substantial evidence to indicate that the parties are committed to each other and that they are in a genuine and continuing relationship.

Whether the persons live together, or do not live separately and apart on a permanent basis

38. The parties have been living separately and apart for 2 years. However, they wish to live together as husband and wife.

39. The Tribunal has had regard to the Federal Court decision in Bretag v Minister for Immigration, Local Government and Ethnic Affairs in which Loughlin J, (29 November 1991) held that:

The Tribunal was entitled to have regard to evidence that dealt with the relationship between [sponsor] and the applicant and between [sponsor] and [the sponsor former wife] subsequent [to the date of decision] for the purposes of testing the claimed relationship between the applicant and [the sponsor] as at that date and as at the date of the application... But the evidence of the subsequent history is only relevant so long as it "tends logically to show the existence or non-existence of facts relevant to the issue to be determined": Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at p.160 per Deane J.

40. The Tribunal also notes that PAM 3 states:

regulation 1.15A(3) applies to visa 309/100, visa 820/801 and visa 831 applications. Officers are required to (`must') have regard to all circumstances of the relationship (there is no discretion not to consider all the circumstances of the factors listed). It is for the decision maker to decide what weight to give to these circumstances (and the listed factors).

Test of a genuine and continuing marriage

41. In previous decisions, the Tribunal followed the statement by the Full Court of the Federal Court in Minister of Immigration and Ethnic Affairs v Dhillon (Full Court of the Federal Court, 8 May 1992, unreported) regarding the test for a genuine and continuing marriage. The Court stated that:

... People enter marriages with a variety of purpose and motives, hopes and anticipations so that it is not possible to classify some purposes etc as according to what may be described as community expectations. It is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to material benefit or advancement, as for example with the hope of becoming eligible to reside in a particular country. The true test, we would suggest the only test, is whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life together as husband and wife to the exclusion of others.

42. Consideration also needs to be given to the cultural context and background in which the marriage took place as the Tribunal cannot ignore multicultural variations in marriages providing such marriages comply with the Marriage Act.

43. In Lynham v the Director-General of Social Security (1983) 52 ALR 128 at 131 per Fitzgerald J, it was stated that in the task of determining whether a marriage is genuine:

It is, in my view, important that the departmental officers or Tribunal charged with the task at least take into account what is the norm for the peer group of the applicant. Only in this way can the legislation be fairly and justly accommodated to a multi-racial and otherwise diverse society.

44. In this case, the delegate doubted the bona fides of the visa applicant in view of the visitor visa application for surrogacy purposes lodged by the visa applicant. The delegate was also concerned that there was some inconsistencies between the evidence of the review applicant and the visa applicant and was also worried about the short time that elapsed between the time of the parties meeting and the time of their marriage.

45. The Tribunal has carefully considered all the evidence in this case, particularly in the light of the cultural and religious background of the parties. The Tribunal notes the visa applicant's responses to various questions posed to her by the interviewing officer in Beirut. These responses, together with the statement from Ms Saraty's brother as to her innocence in regard to the visa application, leads the Tribunal to the view that the visa applicant's friend may have been using her for her own stated "surrogacy" purposes.

46. Substantial evidence has now been placed before the Tribunal in relation to the genuine and continuing nature of the parties' spousal relationship. In the view of the Tribunal, this evidence outweighs any minor inconsistencies in the evidence of the parties. Furthermore, both families appear to support the relationship.

47. In this case, the parties' marriage has now lasted over two years and withstood some two years of separation. They have also spent a month together as husband and wife and the visa applicant is currently living with her husband's parents. In addition, there is evidence before the Tribunal that the review applicant is suffering from some emotional trauma as a consequence of his separation from his wife and the fact that his brother and sister-in-law are no longer able to care for him to the same extent due to their own health problems.

48. The Tribunal is satisfied that, after considering all the evidence before it, in particular the oral evidence as well as the evidence of ongoing contact over the last two years, that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others and that their relationship is genuine and continuing. Indeed, having regard to the `composite picture' (Lynam v Director-General of Social Security (1983) 52 ALR 128) and in the absence of any evidence to suggest that the marriage was contrived according to the meaning of the word as discussed in Dhillon v Minister for Immigration, Local Government and Ethnic Affairs (1989) 17 ALD 552 at 555, there is nothing in the evidence before the Tribunal which would suggest that the parties do not share a mutual commitment to live as husband and wife to the exclusion of all others.

CONCLUSION

49. On the basis of all the evidence before it, the Tribunal finds that the parties are not living separately on a permanent basis. The Tribunal also finds, on balance, that the parties are in a genuine marital relationship and that, at the time of the application, the visa applicant met the definition of spouse as it is set out in regulation 1.15A. She continues to meet it at the time of this decision. It follows that the Tribunal finds that the visa applicant meets the criteria in clauses 309.211 and 309.221.

50. Given these findings, the appropriate course is to remit the application for the visa to the Department to consider the remaining criteria for a subclass 309 visa. If the visa applicant is found to meet the remaining criteria, then the visa applicant is entitled to the grant of a subclass 309 visa.

DECISION

51. The Tribunal remits the application made by the visa applicant for a Partner (Provisional) (Class UF) visa to Department of Immigration and Multicultural and Indigenous Affairs for reconsideration with the direction that the visa applicant meets the following criteria for the grant of a subclass 309 (Spouse (Provisional)) visa:

* clause 309.211 of Schedule 2

* clause 309.221 of Schedule 2

* regulation 1.15A
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