Huynh (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Temporary) (Class UK) visa, Subclass 309 (Partner (Provisional)), made by the first-named applicant, who claimed to be the spouse of the review applicant, an Australian citizen. The dispute centred on whether the parties were in a genuine and continuing spousal relationship as required by the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth). The Tribunal also considered the dependent status of the second and third-named applicants, who were children of the first-named applicant.

The legal issues before the Tribunal were whether the first-named applicant was the sponsor's spouse at the time of the visa application, and whether she continued to meet the requirements of the relevant clause at the time of the decision. The definition of "spouse" under section 5F of the Act requires that the parties be married, have a mutual commitment to a shared life to the exclusion of others, that the relationship be genuine and continuing, and that they live together or not separately and apart on a permanent basis. The Tribunal was required to consider all circumstances of the relationship, including financial, social, household, and commitment aspects, as outlined in regulation 1.15A(3).

The Tribunal found that the parties were validly married in Vietnam in December 2015 and that the review applicant was an Australian citizen, satisfying the initial requirements. Crucially, the Tribunal considered new documentation and oral evidence not available to the original delegate. This evidence, including details of joint financial commitments for the first-named applicant's residence and business, and the nature of their companionship and emotional support, led the Tribunal to be satisfied regarding the duration of the relationship, the length of time they had lived together, and their commitment to a long-term relationship. The Tribunal also gave no weight to an anonymous allegation of a contrived relationship, noting its lack of substantiation and inability to be tested.

The Tribunal remitted the application for a Partner (Provisional) visa for reconsideration, directing that the first-named applicant met the criteria under cl.309.211, cl.309.221, and cl.309.223 of Schedule 2 to the Regulations. The applications of the second and third-named applicants were also remitted for consideration in accordance with the original application.