Ho (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa (subclass 309) by Ms Thi Hong Dinh, a Vietnamese national, sponsored by Mr The Minh Khuong Ho, an Australian citizen. The core dispute revolved around whether the applicant and sponsor were in a genuine and continuing relationship as defined by the Migration Act 1958 (Cth) and associated regulations. The Administrative Appeals Tribunal was required to review the delegate's decision to refuse the visa.

The legal issues before the Tribunal were whether the applicant met the criteria for the grant of the visa, specifically whether she was the spouse of the sponsor as defined under section 5F of the Act. This required the Tribunal to consider all the circumstances of the relationship, including financial, household, social aspects, and the nature of their commitment to each other, as outlined in regulation 1.15 of the Migration Regulations 1994.

The Tribunal affirmed the delegate's decision to refuse the visa. It found that while the parties had married and provided some documentary evidence, including marriage certificates and statutory declarations, the evidence did not sufficiently demonstrate a genuine and continuing partner relationship. The Tribunal noted that the applicant had not visited Australia since August 2018 and that departmental records indicated the sponsor had not returned to Vietnam since February 2019, suggesting a lack of ongoing cohabitation and interaction. The Tribunal concluded that the applicant did not satisfy the criteria for the grant of the visa.