Huynh (Migration)

This matter concerned an appeal by the applicant against a decision to affirm the refusal of her Partner (Residence) (Class BS) visa. The applicant claimed to be the spouse of the sponsor, an Australian citizen who had passed away in Vietnam in March 2019. The core dispute revolved around whether the applicant and the deceased sponsor were in a genuine, continuing, and ongoing spousal relationship as required by the *Migration Act 1958* (Cth) at the time of the sponsor's death.

The legal issues before the Tribunal were whether the applicant and the sponsor were in a valid marriage and, crucially, whether their relationship met the criteria for a "spousal relationship" as defined by section 5F of the *Migration Act*. This definition requires a valid marriage, a mutual commitment to a shared life as a married couple to the exclusion of all others, a genuine and continuing relationship, and that the couple live together or do not live separately and apart on a permanent basis. The Tribunal was required to consider 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 considered adverse information suggesting the relationship was contrived and that the applicant had neglected the sponsor's health, including allegations that she did not live with him but visited infrequently and moved possessions into his home to substantiate her claim. While acknowledging text messages from a grandchild accusing the marriage of being contrived, the Tribunal gave them little weight. Ultimately, the Tribunal concluded that the applicant did not satisfy the criteria for the visa. The Tribunal affirmed the decision not to grant the applicant a Partner (Residence) (Class BS) visa.