Ho (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309, by a visa applicant who claimed to be the spouse of an Australian citizen. The Administrative Appeals Tribunal, constituted by Member M. Edgoose, was required to determine whether the decision to refuse the visa should be affirmed.

The primary legal issue before the Tribunal was whether the parties were in a genuine and continuing spouse relationship, as defined by section 5F of the Migration Act 1958 (Cth). This required the Tribunal to consider whether the parties were validly married, had a mutual commitment to a shared life as a married couple to the exclusion of others, and lived together or did not live separately and apart on a permanent basis. The Tribunal was also directed to have regard to all circumstances of the relationship, including financial and social aspects, the nature of their household, and their commitment to each other, as outlined in regulation 1.15A(3) of the Migration Regulations 1994.

The Tribunal found that the parties were validly married in Vietnam in 2018. However, in assessing the other requirements for a spouse relationship, the Tribunal noted a lack of evidence regarding the financial aspects, including no joint ownership of assets, no joint liabilities, no pooling of financial resources, and limited sharing of day-to-day household expenses. The review applicant, who was 73 years old and on the age pension, rented a room and received rental assistance. The visa applicant, a kindergarten teacher in Vietnam, provided no evidence of her salary or position. Furthermore, the Tribunal noted limited evidence of shared household arrangements and no shared contact with the sponsor's children, which are relevant considerations under regulation 1.15A(3)(b)(i).

Consequently, the Tribunal concluded that the visa applicant did not satisfy the criteria for the grant of the visa. The Tribunal affirmed the decision not to grant the visa applicants Partner (Provisional) (Class UF) visas.