Hoang (Migration)

This matter concerned an appeal by Trung Kien Hoang against the refusal of his Partner (Residence) (Class BS) visa. The applicant and his sponsoring partner, Tina Truong, had initially applied for and been granted a subclass 820 temporary partner visa based on their marriage. However, the sponsor later withdrew her sponsorship, and the applicant's subsequent application for the subclass 801 permanent partner visa was refused because the Minister was not satisfied that he was the spouse or de facto partner of the sponsoring partner at the time of the decision. The applicant subsequently lodged a review application for this refusal and has resided in Australia on a bridging visa. The case was heard by Jennifer Cripps Watts.

The primary legal issue before the Tribunal was whether the applicant met the requirements of cl.801.221 of Schedule 2 of the Migration Regulations 1994, specifically whether he was the spouse or de facto partner of the sponsoring partner at the time of the decision. This required the Tribunal to consider the definition of "spouse" under s.5F of the Migration Act 1958, which necessitates that parties are legally married, have a mutual commitment to a shared life as a married couple to the exclusion of all others, are in a genuine and continuing relationship, and live together or do not live separately and apart on a permanent basis.

The Tribunal found that while the applicant may have met the requirement of being legally married at the time of the decision, he did not satisfy the other essential criteria for a spouse relationship under s.5F(2)(b), (c), and (d). This conclusion was based on the applicant's own admission that he was no longer in a spouse relationship with the sponsor, the sponsor's commencement of divorce proceedings, and the applicant's evidence indicating he was in a new relationship with Tu Anh Tran, with whom he had a child. Consequently, the Tribunal was not satisfied that all the requirements of s.5F(2) were met at the time of the decision.

The Tribunal affirmed the decision not to grant the applicant a Partner (Residence) (Class BS) visa, as he failed to satisfy the criteria for the grant of the visa.