Diep (Migration)

This matter concerned an appeal by a visa applicant against the affirmation of a decision to refuse a Partner (Provisional) (Class UF) visa. The core dispute revolved around whether the applicant and the sponsor, an Australian citizen, were in a genuine married relationship as required by section 309.211(2) of the Migration Act 1958 (Cth) and Regulation 1.15A of the Migration Regulations 1994 (Cth).

The Tribunal was required to determine if the parties met the criteria for a married relationship, specifically whether they had a mutual commitment to a shared life to the exclusion of all others, that the relationship was genuine and continuing, and that they lived together or not separately and apart on a permanent basis. In making this determination, the Tribunal had to consider all circumstances of the relationship, including the financial and social aspects, the nature of their household, and their commitment to each other, as outlined in Regulation 1.15A(3).

The Tribunal found that while the parties' marriage in Vietnam in 2017 was valid, other aspects of their relationship did not satisfy the legislative requirements. Crucially, the Tribunal noted that the sponsor had married another woman in Vietnam in 2007, shortly after first meeting the visa applicant at that wedding, and had subsequently returned to Australia with his new wife, with whom he started a family and had two children. This history cast significant doubt on the genuineness and exclusivity of the relationship with the visa applicant. The Tribunal concluded that, based on the totality of the circumstances, the visa applicant did not meet the criteria for the grant of the visa.

Consequently, the Tribunal affirmed the decisions not to grant the visa applicant the Partner (Provisional) (Class UF) visa.