Au (Migration)

This matter concerned an appeal by Ms Au against the decision of the Department to refuse her Partner (Provisional) (Class UF) visa. The core of the dispute revolved around whether Ms Au and the review applicant, an Australian citizen, were in a genuine and continuing spousal relationship as required by the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). The Tribunal was tasked with determining if the parties met the criteria for a spousal relationship at the time of the visa application and at the time of the decision.

The legal issues before the Tribunal were whether Ms Au was the spouse of the review applicant for the purposes of the Act at the time of her visa application, and whether she continued to meet these requirements at the time of the Tribunal's decision. Specifically, the Tribunal had to consider the definition of "spouse" under section 5F of the Act, which requires a married relationship involving mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and living together or not living separately and apart on a permanent basis. The Tribunal also needed to assess whether the parties were validly married and whether the other requirements for a spousal relationship, as detailed in regulation 1.15A of the *Migration Regulations 1994*, were met.

The Tribunal found that while the parties were validly married, as evidenced by a marriage certificate, other aspects of their relationship raised credibility issues and did not satisfy the criteria for a spousal relationship. The Tribunal noted that the parties lived in different countries, there were no major financial commitments between them, and there was inconsistent evidence regarding the review applicant's trips to Vietnam, including travel dates that did not align with the Department's records. Furthermore, the Tribunal observed a lack of statements from the parties regarding the nature of their relationship, and the provided evidence did not demonstrate a mutual commitment to a shared life as a married couple to the exclusion of all others, nor that they lived together or did not live separately and apart on a permanent basis.

Consequently, the Tribunal affirmed the decision not to grant Ms Au the Partner (Provisional) (Class UF) visa, concluding that she did not satisfy the criteria for its grant.