Dinh (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, Subclass 801 (Spouse). The applicant, who arrived in Australia in December 2012 and was granted a Subclass 820 visa in June 2013, sought to establish that he was the spouse of the sponsor, an Australian citizen. The Department had invited the applicant to provide further information regarding their spousal relationship, and while some information was provided, the applicant did not respond to a voicemail left by the Department. The Tribunal was required to determine whether the applicant met the criteria for a spousal relationship as defined in section 5F of the Migration Act 1958 (Cth).

The primary legal issue before the Tribunal was whether the applicant and the sponsor were in a genuine and continuing spousal relationship, as defined by section 5F of the Act and elaborated in regulation 1.15A of the Migration Regulations 1994. This definition requires that the parties be married to each other under a valid marriage, have a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship be genuine and continuing, and that they live together or not separately and apart on a permanent basis. The Tribunal was to consider all circumstances of the relationship, including financial, household, social aspects, and their commitment to each other.

The Tribunal found that the parties were validly married, satisfying section 5F(2)(a). However, it noted that the applicant had not responded to a voicemail from the Department seeking further information. Despite this, the Tribunal considered the evidence presented, including details of their daily lives, family members, household duties, social events, and future plans, which were consistent between the parties. The Tribunal concluded that the matter should be remitted for reconsideration, with a direction that the applicant met the criteria under clause 801.221 of Schedule 2 to the Regulations, implying that further assessment of the remaining criteria was necessary.