2103759 (Migration)

This matter concerned an appeal by a visa applicant against the refusal of a Partner (Provisional) (Class UF) visa, subclass 309. The review applicant, an Australian citizen, and the visa applicant, a Vietnamese citizen, met in 2017, commenced communicating online, and met in person in April 2018. They became engaged shortly thereafter and married in Vietnam in July 2019. The visa applicant had previously applied for a Prospective Marriage visa, which was refused by the Department. A differently constituted Tribunal had previously remitted that application to the Department following notification of the parties' marriage.

The primary legal issue before the Tribunal was whether the parties were in a genuine and continuing spousal relationship, as required for the subclass 309 visa. This involved assessing various aspects of their relationship, including financial, household, social, and commitment elements, as outlined in regulation 1.15AS of the Migration Regulations 1994. The Tribunal was required to consider the evidence presented, including statements, photographs, financial documents, communication records, and oral testimony, to determine if the relationship met the legislative criteria.

The Tribunal found that the parties were validly married and that the review applicant had the capacity to make decisions about the relationship. It was satisfied that the parties intended to pool their financial resources and share day-to-day household expenses in the future, and intended to establish a joint household in Sydney. Furthermore, the Tribunal concluded that the parties provided each other with companionship and emotional support, and that they were in a genuine spousal relationship.

Consequently, the Tribunal remitted the application for the Partner (Provisional) (Class UF) visa for reconsideration. The remittal was directed with the finding that the visa applicant met the criteria specified in cl.309.211 and cl.309.221 of Schedule 2 to the Migration Regulations 1994.