Dang (Migration)

This matter concerned an application for review by Mr Hong Luan Dang of a decision by the Administrative Appeals Tribunal (the Tribunal) to affirm a delegate's refusal to grant him a Partner (Residence) (Class BS) visa, Subclass 801. The applicant had applied for the visa based on his relationship with his sponsoring partner, Ms Victoria Uyen Nguyen. The core of the dispute was whether the applicant continued to satisfy the criteria for the visa, particularly in light of the breakdown of his relationship with the sponsor.

The legal issues before the Tribunal were whether the applicant was still the spouse of the sponsoring partner at the time of the decision, and if not, whether any of the prescribed exceptions to the genuine and continuing relationship requirement applied. Specifically, the Tribunal considered whether the applicant could meet the criteria for the visa notwithstanding the cessation of his relationship with the sponsor, given that the sponsorship had been withdrawn and the applicant himself confirmed the irretrievable breakdown of their relationship.

The Tribunal's reasoning focused on the applicant's own admissions and the lack of evidence supporting a continuing spousal relationship. The applicant had confirmed to the Tribunal that he and the sponsor had separated in approximately April or May 2018 and had not lived together since. He also acknowledged that his relationship had broken down during COVID-19 in 2020, although he argued the visa should have been granted earlier when the relationship was still subsisting. The Tribunal found no evidence of the parties living together, maintaining a joint household, sharing finances, representing themselves as a couple, or demonstrating a mutual commitment to the relationship. As none of the exceptions to the relationship requirement (death of sponsor, family violence, or shared custody of children) were evidenced, the Tribunal concluded the applicant did not meet the criteria.

The Tribunal affirmed the decision under review, meaning the applicant's Partner (Residence) visa application was ultimately refused.