HOANG (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309, made by the applicant, who claimed to be the spouse of the review applicant, an Australian permanent resident. The Tribunal was required to determine whether the parties had a mutual commitment to a shared life together in a genuine and continuing relationship, specifically whether they met the definition of 'spouse' as defined in section 5F of the Migration Act 1958 (Cth).

The legal issues before the Tribunal were whether the parties were validly married and whether they met the other requirements for a spouse relationship under section 5F(2) of the Act. This involved assessing whether there was a mutual commitment to a shared life as a married couple to the exclusion of all others, whether the relationship was genuine and continuing, and whether the couple lived together or not separately and apart on a permanent basis. The Tribunal was directed to consider all circumstances of the relationship, including financial, social, and household aspects, as outlined in regulation 1.15A(3) of the Migration Regulations 1994.

The Tribunal found that the parties were validly married, as evidenced by a marriage certificate issued by Vietnamese authorities. However, the Department of Immigration had raised concerns regarding the genuineness and continuity of the relationship, citing inconsistent evidence about the parties' initial interactions, communication history, and their living arrangements. Specifically, discrepancies existed regarding when they first developed feelings for each other, whether they maintained contact from mid-2013, and whether they lived together in a hotel or only met at the review applicant's home. The applicant's inability to articulate commonalities between them also contributed to the Department's doubts.

Consequently, the Tribunal concluded that the matter should be remitted for reconsideration by the Minister. The direction was that the visa applicant met the criteria specified in clauses 309.211(2)(b) and 309.221 of Schedule 2 to the Regulations, allowing for further assessment of the remaining criteria for the Subclass 309 visa.