• cl 309.211 of Schedule 2 to the Regulations; and,
• cl 309.221 of Schedule 2 to the Regulations.

MIGRATION - Partner (Provisional) (Class UF) visa - Subclass 309 (Partner (Provisional)) - genuine and continuing relationship - validly married while applicant unlawful non-citizen - advised by former representative's that onshore application not possible - applicant left Australia and currently living in third country - told by Centrelink not to declare marriage until return - limited financial, household and social aspects of relationship while living in different countries - nature of commitment - regular money transfers - couple's child living with sponsor and step-sibling - sponsor's and children's travel to applicant's home and current countries - late provision of extensive documentation - supporting statements - decision under review set aside and remitted

Migration Act 1965 (Cth), ss 5F(2), 65, 362A, 376

Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 309.211(2), 309.221

He v MIBP [2017] FCAFC 206

Jayasinghe v MIMA [2006] FCA 1700

Re MILGEA and Dhillon [1990] FCA 144

Singh v MIEA [1996] FCA 1429

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.

1. This is an application for review of a decision made by a delegate of the Minister on 1 December 2022 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (the Act).
2. The visa applicant, Ghanaian national Mr Kofi Darteh, applied for the visa on 4 September 2018 on the basis of his spousal relationship with his sponsor, the review applicant Ms Daniela Adu who is an Australian citizen. At that time, Class UF contained only one subclass: Subclass 309 Partner (Provisional). Criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
3. The delegate refused to grant the visa on the basis that Mr Darteh did not satisfy cl 309.211 and cl 309.221 of Schedule 2 to the Regulations because, based on available evidence and despite a request pursuant to s 56 of the Act requesting further evidence, the delegate concluded that the relationship between Ms Adu and Mr Darteh does not meet the definition of spouse in s 5F of the Act taking into account all of the circumstances of the relationship including the matters set out in reg 1.1 5A(3) of the Regulations.
4. Following refusal of the visa application, review of the delegate's decision was sought in the Administrative Appeals Tribunal (the AAT). Inconsistent with cl 2.3 of the AAT's President's COVID-19 Special Measures Practice Direction - Migration and Refugee Division dated 27 April 2020, the representative did not provide a written submission addressing the delegate's reasons for refusing Mr Darteh's Subclass 309 visa application together with probative evidence in his submission.
5. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
6. It was not until 9 July 2025 - that is, 2½ years after lodgement of the review application - that further documentation was lodged with the Tribunal. Following constitution of the matter to the Member, Ms Adu and Mr Darteh (hereinafter referred to as the couple) were invited to attend a hearing on 12 September 2025.
7. The Tribunal's hearing invitation expressly requested the couple provide a submission supported by current information and probative evidence to address the delegate's reasons for refusing Mr Darteh's Subclass 309 Partner visa application. The hearing invitation also noted the couple may wish to have family members and/or friends attend the hearing. Alternatively, it suggested such parties may wish to provide an updated Form 888 Supporting statement in relation to a Partner or Prospective Marriage visa application or, for parties located overseas, a Statutory Declaration addressing the genuineness of the couple's relationship and thereby address the delegate's reasons for refusing Mr Darteh's Subclass 309 visa application.
8. Prior to the hearing, the representative provided some documentation including a signed statement from the couple dated 8 September 2025 (the Couple's Statement), evidence of WhatsApp communications between the couple as well as letters of support from 3 friends in Australia and a Report dated 5 September 2025 from Psychologist Ji Fong Zhou.

1. Ms Adu and her husband Mr Darteh appeared before the Tribunal to give evidence and present arguments. Given his current location in Germany, Mr Darteh joined the hearing by way of MS Teams videoconference. The Tribunal also took evidence from the couple's friends Lydia Loget and Maxwell Haligah. Ms Loget came from her home in Adelaide to attend the in-person hearing. The couple were represented in relation to the review by their newly appointed migration agent, Simar Hermis, who also attended the hearing. The Tribunal found all parties attending the hearing to be credible witnesses. Evidence provided at the hearing is discussed below.
2. Early in the hearing, the Tribunal observed that the Department's file contains a valid certificate issued pursuant to s 376 of the Act dated 3 April 2023 (the s 376 Certificate). The effect of a s 376 certificate is that the Tribunal has a discretion to disclose the gist of the information the subject of the certificate in circumstances where disclosure would not be contrary to either s 362A of the Act or the Privacy Act 1988. The Tribunal noted that the gist of the information in the s 376 Certificate relates to material regarding the Department's communications with Centrelink about Ms Adu's marital status as stated in documentation lodged with Centrelink as well as internal records regarding the probity of other unrelated Partner visa applications connected to the couple's marriage celebrant.
3. Ms Adu acknowledged the Tribunal's comments and said that she would provide the Tribunal with evidence of her communications with Centrelink in relation to her not having to declare her marital status given her husband lives overseas and his visa is still pending. After the hearing, she provided a copy of such communications. In relation to the genuineness of the couple's spousal relationship and any concerns the Department may have had about the couple's marriage celebrant, the Tribunal noted it would carefully consider all documentation in support of the genuineness of the couple's spousal relationship. Ms Adu and Mr Darteh acknowledged the Tribunal's comments.
4. During the hearing, the Tribunal discussed with the couple the nature of their spousal relationship including the financial and social aspects of the relationship, the nature of their household as well as their commitment to each other. It also identified a number of shortcomings in documentation lodged prior to the hearing and invited submission of further evidence to address its concerns including the absence of evidence to confirm the genuineness of the signature of each witness. As noted above, witnesses Lydia Loget and Maxwell Haligah appeared before the Tribunal to give oral evidence confirming the genuineness of the couple's relationship.
5. After the hearing, the representative provided additional documentation. This includes further letters of support from Mr Darteh's family in Ghana, a Table of money transfers between the couple, statements from family members in Germany and Ghana addressing the genuineness of the couple's relationship as well as a statement from Ms Adu's eldest child Kevin Boamah and a copy of a text from Centrelink in relation to Ms Adu's efforts to seek advice from Centrelink about updating her marital status in Centrelink's records. Also provided were extensive captioned photographs of Ms Adu and her 2 children on their visits to Ghana in April - May 2023 and then Germany in April - May 2025 to visit Mr Darteh. Information provided in the documentation submitted after the hearing is discussed below.
6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. It acknowledges that it has significantly more information than that which was available to the delegate at the time of their decision, in particular, oral evidence at the hearing as well as the extensive documentation (in the order of 1,300 pages) submitted both prior to and after the hearing.

1. The visa applicant Mr Darteh is a 48-year-old citizen of Ghana. In his Subclass 309 visa application, Mr Darteh declares that he had been in a spousal relationship with Juliana Ofori for 4 years from 6 August 2007 to 11 October 2011. Lodged with the Department was a copy of his Divorce Certificate dated 14 October 2011. There are no children of Mr Darteh's first marital relationship. As set out in the delegate's decision and confirmed that the hearing, Mr Darteh arrived in Australia as the holder of a Subclass 676 Visitor visa on 28 July 2011. He overstayed his Visitor visa and departed Australia almost 7 years later on 17 August 2018. Mr Darteh returned to live in Ghana for 4 years before relocating in October 2022 to live with his elder brother Emmanual Kwaku Sono in Bremen, Germany. He currently works as a Gift Packer and Storeman with Amazon. A copy of a payslip from Amazon Germany was also provided to the Tribunal.
2. The review applicant Ms Adu is a 36-year-old Australian citizen. She arrived in Australia on 17 December 2005 from Ghana as the holder of a permanent residence Subclass 100 Partner visa sponsored by her first husband Louis Danso. Ms Adu divorced her first husband on 9 December 2017 as confirmed by the Divorce Order issued by the Federal Circuit Court of Australia lodged with the Department. Ms Adu is the mother of 2 sons. Her eldest child, 17-year-old Kevin Boamah, is a child of her first marriage. The youngest child, 8-year-old Kayden Adu, is a child of the couple's relationship as confirmed by the DNA test results dated 10 September 2019 lodged with the Department. Both of Ms Adu's children live with her in Macquarie Fields. Ms Adu acquired Australian citizenship on 27 September 2021 as confirmed by the Citizenship Certificate lodged with the Department. Since 2022, Ms Adu has worked as a Disability Support Worker. Currently, she works with NDIS provider Unisson Disability.
3. As set out in the delegate's decision, 5 months after arriving in Australia on her Subclass 100 Partner visa, Ms Adu met Mr Darteh at a nightclub in Parramatta on 21 May 2016. As a explained during the hearing, Ms Adu said she and her first husband had reached a point where she just needed to get away for a night for her mental health and, for the first time ever in her life, she had an alcoholic drink and happily met Mr Darteh. The couple exchanged phone numbers and went on a few dates. Thereafter, they took a break because of family and life circumstances. As noted above, Ms Adu's relationship with her first husband deteriorated to the point where, on 8 November 2017, she divorced Mr Danso.
4. The couple reconnected on 15 February 2018 when they, per chance, bumped into each other at a Coles supermarket in Liverpool. It was at this meeting that Ms Adu told Mr Darteh that she had given birth to their child, Kayden Adu, wo was born on [Date]. Ms Adu told the Tribunal that she was absolutely certain the child was that of Mr Darteh and not her first husband because her sexual relationship with Mr Danso had already ended by that time. She added that she did seriously consider an abortion and discussed this with her bestie Ms Loget and her mother but, as abortions is not acceptable in African culture, she did not proceed. It was 4 months after the couple ran into each other again at Liverpool and reconnected that they married on 23 June 2018.
5. Mr Darteh and Ms Adu independently confirmed at the hearing that they discussed Mr Darteh's visa options with the registered migration agent who assisted him with his visa application. The former representative did not inform them that it would have been possible to lodge a Subclass 820 Partner visa application on-shore and address the relevant Schedule 3 criteria of Mr Darteh being an unlawful non-citizen at the time of application as part of that application. Rather, the former representative just told the couple that Mr Darteh had to leave Australia and apply offshore for a Subclass 309 Partner visa, which he did.
6. Since Mr Darteh has left Australia, Ms Adu and her 2 sons travelled to Ghana on 3 April 2023 for a one month stay with her husband and meet his family. She went to Germany on her own for 3 weeks on 11 April 2024 to spend time with her husband before she travelled to Germany again, this time with her 2 sons, on 9 April 2025 for a one month stay. Extensive evidence has been provided to the Tribunal of captioned photographs of the couple together with family and friends including Ms Adu's 2 sons both in Ghana and Germany during these trips.

1. The issue in this case is whether Ms Adu and Mr Darteh were in a genuine spousal relationship at the time of application and they continue to be in such a relationship as at the time of this decision. Relevant provisions of the Act and the Regulations referred to in this decision are set out in the Attachment to the decision.

1. Clause 309.211(2) of Schedule 2 to the Regulations requires that, at the time the visa application was made, Mr Darteh was the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. With limited exceptions that only apply in relation to a decision to grant or not grant a Subclass 309 visa made on or after 20 August 2022, the visa applicant Mr Darteh must continue to be the spouse or de facto partner at the time of the Tribunal's decision: cl 309.221 of Schedule 2 to the Regulations. In the present case, Mr Darteh claims be the spouse of her sponsor, Australian citizen Ms Adu.
2. The word 'spouse' is defined in s 5F of the Act and provides that a person is the spouse of another where the 2 persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act. There must also be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a) - s 5F(2)(d) of the Act.
3. In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects of the parties' relationship as well as the nature of the visa applicant's and the sponsor's household and their commitment to each other as set out in reg 1.15A(3) of the Regulations. These provisions are extracted in full in the Attachment to this decision. Each of the specific matters contained in reg 1.15A(3) of the Regulations are effectively questions which must be answered by the decision-maker: He v MIBP [2017] FCAFC 206 at paras [76] - [77]. The Tribunal's assessment of whether the claimed relationship involves a 'mutual commitment to a shared life' requires an assessment of the subjective intentions of the parties: Singh v MIEA [1996] FCA 1429 at [13].
4. Relevant to its review of the delegate's refusal of Mr Darteh's Subclass 309 visa application, the Tribunal notes the following comments of Middleton J in Jayasinghe v MIMA [2006] FCA 1700 at para [35]:

Evidence of events subsequent to the visa application is relevant if it 'tends logically to show the existence or non-existence of facts relevant to the issue to be determined': see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. The Tribunal must consider all relevant evidence, which may include evidence of events subsequent to the date of application insofar as it assists in the task of determining whether the appellant and the sponsor were in a marriage relationship at the time of the application. The question of whether particular evidence is relevant and the weight it is to be given is clearly a matter for the Tribunal.

1. Further, the Federal Court of Australia has accepted in Re MILGEA and Dhillon [1990] FCA 144 at para [11] that people enter marriages with a variety of purposes and motives, hopes and aspirations: it is not necessarily inconsistent with the genuine spousal relationship that a couple's marriage was entered into by one or both parties with a view to material benefit, such as the hope of becoming eligible to reside in a particular country. As noted by the Court, the 'true test, we would suggest the only test, is whether at the time the matter has to be decided it can be said that the parties have a mutual commitment to a shared life of husband-and-wife to the exclusion of others'.
2. In deciding this matter, the Tribunal has had regard not only to evidence lodged with the Department but also evidence provided to the Tribunal. It acknowledges that it has the benefit of receiving substantially more evidence than that which was available to the delegate (in excess of 1,300 pages), including oral evidence at the hearing from the couple and their friends who attended the in-person hearing as well as the documentation submitted by the representative both before and after the hearing.

1. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.
2. The couple provided to Department a copy of their Marriage Certificate confirming their marriage on 23 June 2018 in Casula, Western Sydney. At the time, Mr Darteh was an unlawful non-citizen in Australia as his Subclass 676 Visitor visa had expired approximately 6½ years earlier on 21 November 2011. Also lodged with Department with a copy of Ms Adu's Divorce Certificate issued by the Federal Circuit Court of Australia on 9 December 2017 confirming that she had divorced her former husband Louis Danso. In addition, Mr Darteh lodged with the Department was a copy of his Divorce Certificate dated 14 October 2011 confirming that his marriage to his first wife Juliana Ofori had been formally dissolved.
3. Based on this evidence, the delegate was satisfied, as is the Tribunal, that Ms Adu and Mr Darteh were lawfully married in Australia.
4. Having regard to evidence provided, the Tribunal accepts that the couple are validly married for the purposes of s 5F(2)(a) of the Act at the time of application, and that they continue to be married to each other as at the time of this decision.

Are the other requirements for a spousal relationship met?

1. The next issue for consideration is whether the parties meet the other requirements of a spousal relationship.
2. In forming an opinion on the matters required in s 5F(2)(b) - s 5F(2)(d) of the Act, regard must be had to all of the circumstances of the claimed relationship. This includes the factors identified in reg 1.15A(3) of the Regulations and any other circumstances relevant to the relationship under reg 1.15A(2) of the Regulations. By way of brief summary, the factors in reg 1.15A(3) of the Regulations are: the financial aspects of the relationship; the nature of the household; social aspects of the relationship; and, the nature of the persons' commitment to each other.
3. The Tribunal acknowledges there is a substantial amount of documentary evidence of the couple's relationship that was not before the delegate. The Tribunal has had due regard to available evidence including oral evidence at the hearing.

Financial aspects of the relationship: reg 1.15A(3)(a)

1. When considering the financial aspects of the claimed spousal relationship, the Tribunal is required to have regard to: the joint ownership of assets; any joint liabilities; the extent of pooling of financial resources; any legal obligations owed to the other party; and, the sharing of day-to-day household expenses.
2. As noted in the delegate's decision, a copy of which was provided to the Tribunal, the couple provided some receipts of money transfers. While acknowledging that the receipts indicate that Ms Adu was sending money to Mr Darteh at the time that he was living in Ghana the delegate found that evidence provided does not demonstrate a financial commitment to the pooling of shared financial resources. No other evidence had been provided to support the financial aspects of the couple's relationship, such as evidence of shared assets and liabilities.
3. The Tribunal acknowledges that the couple live in separate countries and they do not have any joint assets or liabilities. The representative has provided Tables of funds transfers confirming funds transferred between the couple. Table 1 below sets out funds transferred by Ms Adu to her husband whilst he was living in Ghana. Receipts confirming the funds transfers were lodged with the Department.

Table 1 - Funds transferred by Ms Adu to Mr Darteh from 1 February 2019 to 11 July 2022

1. The couple explained during the hearing that when he returned to Ghana given the dire situation in the country Mr Darteh was unable to find secure work. Accordingly, he explored other options and eventually decided to relocate and live with his brother in Germany with a view to finding work there.
2. Since Mr Darteh has moved to Germany, he has been gainfully employed working with Amazon on and has transferred funds on a regular basis to his wife in Australia as set out in Table 2 below. Receipts confirming these funds transfers using services provided by WorldRemit or RIA Financial Services Australia (T/A RIA) have been provided to the Tribunal.

Table 2 - Funds transfers by Mr Darteh to Ms Adu from 8 November 2023 to 15 September 2025

1. The couple told the Tribunal that Mr Darteh has steadily supported his wife and her children in Australia since he relocated to Germany. In addition to regularly submitting funds in the order of $400 per month since late 2023, he now routinely submits funds in the order of $800 per month. In addition, Mr Darteh has provided additional funds for special needs such as to pay for his step-son Kevin's driving lessons and reimburse his wife for gifts that she has purchased for the boys' birthdays. In this regard, the couple gave the example of Mr Darteh reimbursing his wife for her purchase of AirPods for her son Kevin's birthday on 28 August 2025.
2. The Tribunal accepts the submission in the Couple's Statement provided prior to the hearing that the evidence of funds transfers outlined above in Table 2 shows Mr Darteh's consistent financial commitment to his family in Australia to help meet the children's needs and the family's general living expenses.
3. After the hearing, the Tribunal was provided with a copy of Ms Adu's superannuation fund statement with AustralianSuper dated 19 September 2025 confirming that she has identified her husband is a 50% beneficiary of the fund in the event of her death and each of her 2 sons will equally share the remaining half of the fund.
4. Acknowledging that the couple live in different countries and based on evidence provided the Tribunal is satisfied that the financial aspects of the relationship of Ms Adu and Mr Darteh is indicative of a couple in a spousal relationship, both at the time of lodgement of the visa application and at the time of this decision.

Nature of the household arrangements: reg 1.15A(3)(b)

1. The Tribunal is required to consider the nature of the parties' household including: any joint responsibility for the care and support of children; their living arrangements; and, any sharing of responsibility for housework.
2. The delegate's decision observes that the parties have spent limited time cohabiting and there is limited evidence supporting any cohabitation claims. Whilst acknowledging that both at the time of application and as at the time their decision Mr Darteh and Ms Adu live in different countries, the delegate recognises that the couple have not had the opportunity to live together on a permanent basis or share domestic responsibilities. Relevantly, as at the time of the delegate's decision, Ms Adu had not returned to Ghana to spend time with her husband, and nor had she taken her children there.
3. During the hearing, Ms Adu and Mr Darteh independently confirmed information in the Couple's Statement which was lodged prior to the hearing that, relying on the advice of their former representative, they agreed that Mr Darteh should return to Ghana to lodge his Subclass 309 Partner visa application offshore. They were advised that if Mr Darteh stayed in Australia it would only be for a few months, he would have no work rights and, in these circumstances, it would be impracticable and unreasonable to enter into a joint tenancy agreement or commit to utility bills together. In the circumstances, they believed it would tie Ms Adu into long-term financial liabilities and that would not be good.
4. Having regard to available evidence - including not only evidence from all of the parties attending the hearing but also information in the signed statement from Ms Adu's eldest son Kevin Boamah dated 23 September 2025 provided after the hearing - the Tribunal accepts that the couple lived together in an apartment in Glenfield both before and after their marriage in Sydney. It also accepts that the couple shared daily household responsibilities such as cooking, cleaning and care of their Ms Adu's young sons Kayden Adu and Kevin Boamah.
5. Further, the Tribunal also accepts that the couple have spent considerable time together on Ms Adu's 2 return trips to Ghana as well as her more recent trip to Germany. In relation to her one-month stay in Ghana in April 2023 together with her 2 sons, the couple have provided a copy of the Tenancy Agreement dated 4 April 2023 confirming lease of a house in Accra. During the hearing, the Tribunal raised its concern that the lease is said to be for 'a period of one year' and yet Ms Adu and her sons' Movement Records confirmed that they left Australia on 3 April 2023 for one month only as they returned on 5 May 2023. The couple independently explained that Mr Darteh was not able to secure a lease for the one-month stay of Ms Adu and her 2 sons. In the circumstances, Mr Darteh felt he had no choice but to agree to the cost of paying the annual rental fee of GHs 18,000 (AUD 2,511).[1]
6. Evidence of the household arrangements of the couple during their time together in Ghana and in Germany has been confirmed in the written statements respectively from Mr Darteh's father Paul Sono Kwabena Boamah dated 25 September 2025 and his brother Emmanuel Kwaku Sono dated 23 September 2025 provided after the hearing. In addition, the Tribunal has the benefit of the statement dated 8 September 2025 from Ms Adu's best friend Lydia Loget. Ms Loget has known Ms Adu since their time together as children in Ghana. Her statement warmly attests to the couple's devotion and confirms that she often visited their home in Glenfield for dinner and sleepovers when visiting from her home then in Darwin. At the hearing, Ms Loget confirmed that she has observed Mr Darteh take part in household responsibilities including helping with the children, cooking and cleaning.
7. Highly relevant to the Tribunal post appears consideration of this requirement, is the fact that the Tribunal accepts the couple have a child together and that Mr Darteh has proactively been involved in the growth and education of both his son and his stepson. It also accepts that, as outlined above, he supports Ms Adu and her 2 children financially.
8. Having regard to evidence provided, including oral evidence at the hearing, the Tribunal is satisfied that, when Mr Darteh was living with Ms Adu in Glenfield, the nature of their household at that time is indicative of a couple in a spousal relationship. Further, during the 4 years that Mr Darteh lived in Ghana and his more recent 3 years in Germany, evidence provided by family members and friends as well as the oral evidence at the hearing confirms that the couple for continue to provide care and support for Ms Adu's 2 sons including Mr Darteh's son Kayden and that the couple's living arrangements when they have managed to spend time together are indicative of a couple in a genuine spousal relationship.

Social aspects of the relationship: reg 1.15A(3)(c)

1. In its consideration of the social aspects of the parties' relationship, the Tribunal is required to consider: whether the parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and, any basis on which the persons plan and undertake joint social activities.
2. The delegate noted limited evidence had been provided to demonstrate the social aspects of the couple's relationship. In particular, the delegate noted the size and location of the couple's wedding ceremony attended by 4 witnesses only and which at been held in a home backyard. Whilst acknowledging that some photographs have been provided of the couple with Ms Adu's children and some weight was given to those photographs, the delegate noted only a few photographs had been provided of the couple together with other parties. The delegate also noted that 3 Forms 888 had been provided from parties who had attended the couple's marriage: this highlighted for the delegate the limited number of people who socially recognise the couple's spousal relationship. Furthermore, each of the Forms 888 provided contained generic relationship information. The delegate also noted the absence of statements from Government agencies such as Centrelink.
3. In the Couple's Statement provided prior to the hearing, Mr Darteh and Ms Adu have addressed each of the concerns raised by the delegate. In relation to comments regarding the location and size of the wedding, the couple submit that the size and setting of a wedding should not, on its own, be interpreted as a lack of commitment or sincerity. The Tribunal accepts the couple's observation in this regard. As confirmed at the hearing, Ms Adu was still dealing with her recent arrival in Australia, the breakdown of her previous marriage and the isolation and emotional vulnerability that she experienced. The Tribunal also accepts that, at the time, her best friend Ms Loget was living in Darwin and had a limited opportunity to support her in person. Each of the couple independently confirmed that their wedding ceremony was deeply meaningful to them.
4. Regarding the absence of social recognition of the couple's relationship by Government agencies, Ms Adu told the Tribunal that, after her divorce from her first husband and then her marriage to Mr Darteh, he had left to return to Ghana for the purpose of lodging his Subclass 390 Partner visa application she did contact Centrelink to inform it of her new spousal relationship: however, she was told that until her husband arrives in Australia she should continue to indicate that she is single on her Centrelink forms.
5. As noted above, after the hearing, the Tribunal was provided with a Centrelink Feedback form confirming that, following the hearing, Ms Adu had again sought confirmation of her evidence at the hearing of her efforts to update her marital status from Single to Married. The Centrelink Feedback form provided confirms that Ms Adu was:

'directed to Section 24 of the Social Security Act that provides a discretion to enable a delegate NOT to treat a person as a member of a couple, due to a 'special reason'. She was informed that due to her circumstances, as was in 23 October 2018 when she informed Centrelink that she was now married and thus sought to update her status, it would be inequitable to treat them (herself and Kofi) as members of a couple, as Kofi 'is living overseas awaiting residency application'. Her marital status remained to be single, to date. The same was reiterated during her interaction with them, post the ART hearing on 16 September 2025.'

A link was provided in the Feedback Form to an extract from the Guides to Social Policy Law addressing the provisions of 2.2.5.40 Discretion to treat a person is not being a member of a couple for a special reason - section 24.[2]

1. The Tribunal accepts the evidence provided confirms that, as claimed by Ms Adu, she did reach out to Centrelink in October 2018 after her marriage to Mr Darteh in an effort to update her marital status and that, consistent with advice received at that time, Centrelink has continued to treat her as Single - rather than Married - given her husband Mr Darteh continues to remain overseas pending the Department's approval of his Subclass 309 Partner visa. A copy of the Centrelink Feedback form will be provided to the Department.
2. In addition, the Tribunal accepts the oral evidence at the hearing from witnesses Ms Loget and Mr Haligah. The Tribunal also acknowledges a statement from Patience Obeng warmly attesting to the genuineness of the couple's relationship and the fact that she visited the couple at their home in Glenfield. Further, it acknowledges the signed Statements dated 23 September 2025 from Mr Darteh's father in Ghana and his older brother in Germany provided after the hearing confirming they each recognise the genuineness of the couple's spousal relationship and their ongoing commitment to each other. Evidence of their signature was also provided: respectively, his father's Ecowas Identity Card confirming he is a citizen of Ghana; and, his older brother's Ghanaian passport valid to 7 April 2029 and his German Residents Permit valid to 7 April 2029.
3. The Tribunal also acknowledges the statement received from Kevin Boamah warmly attesting to Mr Darteh's relationship with his mother, himself and his younger brother. Kevin Boamah attests to the love and care that his stepfather has always shown him since meeting him first in 2018 and the active and consistent father figure not only in his life but also that of his younger brother since then. He recounts the trips that he has made with his mother and younger brother to Ghana in 2023 and then Germany in 2025 to see his father when, as a family, they did everything together including shopping, cooking, going to church, catching up with family and just having fun. Kevin Boamah adds that, when they had to leave his stepfather in Ghana and Germany to return to Australia, they all cried tears. He opines that they don't just talk about being a family, they live it whenever they are together.
4. Further, the Tribunal acknowledges receipt of more captioned photographs of the couple together Kevin Boamah and the couple's son in Ghana and Germany. Multiple captioned photographs have also been provided of the couple together with their children and family at various locations across Ghana and Germany.
5. Having regard to evidence provided, in particular, the Forms 888 lodged with the Department as well as oral evidence at the hearing from Ms Loget and Mr Haligah, the updated Statements from each of them as well as Mr Darteh's father and his brother together with the extensive range of captioned photographs and the Centrelink Feedback form, the Tribunal is satisfied that the parties represent themselves as being married to each other and that the social aspects of the relationship support a finding that the couple were in a genuine spousal relationship at the time of lodgement of Mr Darteh's Subclass 309 visa application and that this continues to be the case as at the time of this decision.

Nature of the persons' commitment to each other: reg 1.15A(3)(d)

1. In its consideration of the nature of the persons' commitment to each other the Tribunal is required to consider: the duration of the relationship; the length of time the parties have lived together; the degree of companionship and emotional support they draw from each other; and, whether they see the relationship as long term.
2. The delegate acknowledged receipt of the DNA test confirming Kayden Adu who was born on [Date] is the common biological child of Mr Darteh and Ms Adu. However, the delegate afforded this minimal weight as evidence of the couple's commitment to each other given the Birth Certificate for Kayden Adu does not disclose the name of his father. Second, the delegate notes that Kayden Adu was born only 8 months and one week after the parties claim to have first met at a nightclub in Parramatta on 21 May 2016. In their decision record, the delegate notes that at the time of conception, Ms Adu was still married to her now ex-husband and she continued to be married to him for another 2.5 (sic) years. Further, her Divorce Certificate demonstrates that Ms Adu's first husband was identified by the Federal Circuit Court as a 'child of the marriage' as defined in s 55A(3) of the Family Law Act 1975. Relevant to these findings, the Tribunal notes that the Divorce Certificate issued by the Federal Circuit Court of Australia on 9 December 2017 confirms that Ms Adu divorced her husband 10 months after her son Kayden was born.
3. During the hearing, Ms Adu told the Tribunal that she has already filed an application to amend Kayden's Birth Certificate to confirm that, consistent with the DNA test results provided to the Department, her husband Mr Darteh is his father. As at the time of this decision, no evidence has been provided to confirm that the NSW Registry of Births Deaths and Marriages has issued an amended Birth Certificate.
4. The delegate acknowledged that, given the couple live in different countries, the vast majority of the couple's relationship has been ongoing communications. However, the WhatsApp chat records provided to the Department contain a significant amount of and missed calls. Further, as at the time of the delegate's decision, Ms Adu had not managed to leave Australia to spend time with her husband in Ghana.
5. The Tribunal acknowledges that the couple have been married now for more than 7 years and that Ms Adu gave birth to the couple's son 8½ years ago. It also accepts that, as noted above and confirmed by the airline tickets provided, Ms Adu and her 2 sons have visited her husband in Ghana in 2023 and Germany in 2025. In addition, she also left Australia in April 2024 to spend 3 weeks with him. The Tribunal accepts that Australia's borders were closed due to the COVID-19 pandemic from 20 March 2020 until 15 December 2021. Further, the Tribunal accepts statements from the couple that the financial cost of international travel, especially when travelling with 2 children, was an impediment until such time as Mr Darteh relocated to Germany from Ghana to live with his brother and, thereafter, secure work rights in Germany to enable him to send funds to his wife. For the reasons outlined above, the Tribunal accepts that Mr Darteh has financially supported his Australian family since securing work in Germany.
6. Further, the Tribunal accepts the evidence of ongoing WhatsApp communications provided confirm that the couple continue to communicate on a daily basis, often on multiple occasions on the same day. Having regard to the delegate's comments referred to above, the Tribunal has been provided with evidence of the duration of the couple's calls to each other and the phone numbers used. Typically, calls range from 2 - 3 minutes up to an hour. Ms Adu and Mr Darteh submit in the Couple's Statement provided to the Tribunal prior to the hearing that their communication pattern is entirely consistent with their committed long-distance spousal relationship and that they have adapted to their circumstances using video and audio calls which enables inclusion of the children in their communications.
7. By way of final comment in the Couple's Statement, Ms Adu and Mr Darteh confirm their marriage is not one of convenience. Rather, it is a marriage of perseverance, sacrifice and love. It reflects their determination to build a stable and lasting future life together.
8. As noted above, the Tribunal has also been provided with a Psychological Report prepared by registered psychologist Ji Fang Zhou dated 5 September 2025. Mr Zhou confirms that he first saw Ms Adu in June 2024 following referral from her GP Dr Nipa. He has subsequently seen her for 6 sessions to treat her anxiety and depression. As set out in Mr Zhou's report, Ms Adu's psychological presentation and functioning are deeply intertwined with her prolonged separation from her husband who has been living overseas since 2018. Following various Psychometric Assessment, and her commencing therapy in 2024, Mr Zhou notes there has been overall minimal improvement in Ms Adu's depression, anxiety and stress although periods of notable improvement followed family reunions in 2023 and 2025 when she reported reduced anxiety, brighter mood and greater optimism.
9. Mr Zhou concludes his report confirming that Ms Adu has a long-standing and genuine marital relationship with Mr Darteh and this has been corroborated by his clinical observations, her husband's testimony as well as friends witness statements. He opines that Ms Adu's mental health difficulties are significantly aggravated by her prolonged separation from her husband and that, in his professional opinion, reunification with her husband would be a critical protective factor in support of her recovery, stabilising her mental health and improving family functioning. A copy of Mr Zhou's Psychological Report will be provided to the Department.
10. Based on evidence provided, the Tribunal accepts the couple have been in a spousal relationship for nearly 7½ years and that they continue to maintain almost daily communications to emotionally support each other. The Tribunal also accepts that the couple see their relationship as long term and that they rely on each other for companionship and emotional support. It is satisfied that the nature of the couple's commitment to each other is indicative of parties in a spousal relationship as at the time of lodgement of Mr Darteh's Subclass 309 visa application and that they continue to be in a spousal relationship as at the time of this decision.

1. Having regard to the decisions in Jayasinghe v MIMA [2006] FCA 1700 and Re MILGEA and Dhillon [1990] FCA 144 referred to above at para [25] and [26], and based on the evidence provided as to the financial and social aspects of the couple's relationship as well as the nature of their household arrangements on occasions when they do live together and their evidently strong commitment to each other, the Tribunal is satisfied that, at the time of application, Mr Darteh and Ms Adu were in a genuine spousal relationship and, at the time of this decision, this continues to be the case.
2. The Tribunal is also satisfied that the couple do not live separately and apart on a permanent basis. Having regard to the above, the Tribunal is satisfied that the requirements of s 5F(2) of the Act are met at the time the visa application was made and at the time of this decision.
3. Therefore, Mr Darteh meets cl 309.211 and cl 309.221 of Schedule 2 to the Regulations.
4. Given the findings above, the appropriate course is to set aside the decision under review and remit the application for the visa to the Minister to enable consideration of the remaining criteria for a Subclass 309 visa. In light of the comments in the Psychological Report from Mr Zhou referred to above at para [69] - [70] and the impact that Ms Adu's mental health may have on her ability to meaningfully nurture her Australian citizen children, the Department may consider it appropriate to prioritise processing of the remitted application. In this regard, the Tribunal notes it would have prioritised making a decision in this case but for a suite of issues impacting its ability to do so.

1. The Tribunal sets aside the decision under review and remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, in accordance with the order that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
   • cl 309.211 of Schedule 2 to the Regulations; and,
   • cl 309.221 of Schedule 2 to the Regulations.

Representative for the Applicant: Mr Simar Hermis (MARN: 1464902)

ATTACHMENT - Extracts from Migration Act 1958 and Migration Regulations 1994

Migration Act 1958

(1) For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.

(2) For the purposes of subsection (1), persons are in a married relationship if:

(a) they are married to each other under a marriage that is valid for the purposes of this Act; and

(b) they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and

(c) the relationship between them is genuine and continuing; and

(d) they:

(i) live together; or

(ii) do not live separately and apart on a permanent basis.

(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.

Note: Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.

Migration Regulations 1994

(1) For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2) (a), (b), (c) and (d) of the Act exist.

(2) If the Minister is considering an application for:

(a) a Partner (Migrant) (Class BC) visa; or

(b) a Partner (Provisional) (Class UF) visa; or

(c) a Partner (Residence) (Class BS) visa; or

(d) a Partner (Temporary) (Class UK) visa;

the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

(a) the financial aspects of the relationship, including:

(i) any joint ownership of real estate or other major assets; and

(ii) any joint liabilities; and

(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and

(iv) whether one person in the relationship owes any legal obligation in respect of the other; and

(v) the basis of any sharing of day‑to‑day household expenses; and

(b) the nature of the household, including:

(i) any joint responsibility for the care and support of children; and

(ii) the living arrangements of the persons; and

(iii) any sharing of the responsibility for housework; and

(c) the social aspects of the relationship, including:

(i) whether the persons represent themselves to other people as being married to each other; and

(ii) the opinion of the persons' friends and acquaintances about the nature of the relationship; and

(iii) any basis on which the persons plan and undertake joint social activities; and

(d) the nature of the persons' commitment to each other, including:

(i) the duration of the relationship; and

(ii) the length of time during which the persons have lived together; and

(iii) the degree of companionship and emotional support that the persons draw from each other; and

(iv) whether the persons see the relationship as a long‑term one.

(4) If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

Schedule 2 - Subclass 309 -- Partner (Provisional)

"intended spouse" means the person referred to in subparagraph 309.211(3)(a)(i), (ii) or (iii).

Note: eligible New Zealand citizen and guardian are defined in regulation 1.03, parent is defined in subsection 5(1) of the Act (also see regulation 1.14A), de facto partner is defined in section 5CB of the Act (also see regulation 1.09A), and spouse is defined in section 5F of the Act (also see regulation 1.15A).

309.21 - Criteria to be satisfied at time of application

309.211 (1) The applicant meets the requirements of subclause (2) or (3).

(2) The applicant meets the requirements of this subclause if the applicant is the spouse or de facto partner of:

(3) The applicant meets the requirements of this subclause if:

(b) the intended marriage will, if it takes place, be a valid marriage for the purposes of section 12 of the Act.

Note: If the applicant is an applicant referred to in subclause 309.211(3), the marriage must have taken place before the applicant can be granted a visa of this subclass: see clause 309.224.

309.212 (1) The spouse, de facto partner or intended spouse of the applicant is not prohibited by subclause (2) from being a sponsor.

(2) The spouse, de facto partner or intended spouse is prohibited from being a sponsor if:

(b) the spouse, de facto partner or intended spouse is a woman who was granted a Subclass 204 (Woman at Risk) visa within the 5 years immediately preceding the application; and

(i) the applicant was a former spouse or former de facto partner of that woman, having been divorced or permanently separated from that woman; or

(ii) the applicant was the spouse or de facto partner of that woman and that relationship had not been declared to Immigration.

309.213 (1) If the applicant is an applicant referred to in subclause 309.211(2), the applicant is sponsored:

(a) if the applicant's spouse or de facto partner has turned 18--by that spouse or de facto partner; or,

(b) if the applicant's spouse has not turned 18--by a parent or guardian of that spouse who:

(ii) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

(2) If the applicant is an applicant referred to in subclause 309.211(3), the applicant is sponsored:

(a) if the applicant's intended spouse has turned 18--by that intended spouse; or

(b) if the applicant's intended spouse has not turned 18--by a parent or guardian of that intended spouse who:

(ii) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

309.22 - Criteria to be satisfied at time of decision

309.221 The applicant continues to satisfy the criterion in clause 309.211.

309.222 The sponsorship referred to in clause 309.213 has been approved by the Minister and is still in force.

Note: Regulations 1.20J, 1.20KA and 1.20KB limit the Minister's discretion to approve sponsorships.

309.223 In the case of an applicant who meets the requirements of subclause 309.211(2), the applicant continues to be the spouse or de facto partner of the person referred to in paragraph 309.211(2)(a), (b) or (c) who was the applicant's spouse or de facto partner at the time of the application.

309.224 If the applicant is an applicant referred to in subclause 309.211(3), the marriage referred to in that subclause has taken place and the applicant continues to be the spouse of the intended spouse.

(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4009, 4020 and 4021 ; and

(b) if the applicant had turned 18 at the time of application -- satisfies public interest criterion 4019.

309.226 If the applicant has previously been in Australia, the applicant satisfies special return criteria 5001 and 5002.

309.228 (1) Each member of the family unit of the applicant who is an applicant for a Subclass 309 visa is a person who:

(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4009 and 4020; and

(aa) if the person had turned 18 at the time of application, satisfies public interest criterion 4019; and

(b) if the person has previously been in Australia, satisfies special return criteria 5001 and 5002.

(2) Each member of the family unit of the applicant who is not an applicant for a Subclass 309 visa is a person who:

(a) satisfies public interest criteria 4001, 4002, 4003 and 4004; and

(b) satisfies public interest criterion 4007, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion.

309.229 If a person (in this clause called the additional applicant):

(a) is a member of the family unit of the applicant; and

(c) made a combined application with the applicant-- public interest criteria 4015 and 4016 are satisfied in relation to the additional applicant.

[1] Currency Converter | Foreign Exchange Rates | OANDA

[2] 2.2.5.40 Discretion to treat a person as not being a member of a couple for a special reason - section 24 | Social Security Guide