Duong (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa (Subclass 820). The applicant, a national of Vietnam, married an Australian citizen in March 2019 and they lodged their visa application in May 2015. The Federal Circuit and Family Court had remitted the matter for review. The core of the dispute revolved around whether the parties were in a genuine and continuing married relationship at the time of the decision, as required by the Migration Regulations 1994.

The legal issues before the Tribunal were whether the applicant and sponsor were in a genuine and continuing married relationship at the time of the decision, and whether the applicant continued to meet the requirements of clause 820.211(2)(a) of Schedule 2 to the Regulations, which mandates that the applicant must remain the spouse of the sponsoring partner unless specific exceptions apply. The Tribunal was required to consider all circumstances of the relationship, including financial aspects, the nature of the household, social aspects, and the nature of the commitment to each other, as outlined in regulation 1.15A(3).

The Tribunal's reasoning focused on the applicant's written statement dated 20 March 2024, in which he confirmed the relationship had broken down, he was in a new relationship and expecting a child, and he wished to vacate the hearing and have a decision made on paper. The Tribunal accepted that the relationship had ceased and that the applicant was effectively waiving his right to appear and present arguments. Crucially, the Tribunal noted that none of the exceptions to the cessation of a relationship (such as death of the sponsor, family violence, or orders relating to children) were applicable in this case. The Tribunal found that while the parties had presented evidence of a genuine relationship at the time of application, including shared finances, living in a multi-generational household, and social recognition of their marriage, the subsequent cessation of the relationship meant the applicant no longer met the criteria for the visa at the time of the decision.

The Tribunal affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa. The applicant's stated intention to seek ministerial intervention under section 351 of the Migration Act was noted, and the applicant was advised that he now had an appropriate decision to make such an application if he chose to do so.