LAM (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309, made by Ms. Tran, sponsored by Mr. Lam, an Australian citizen. The central dispute revolved around whether Ms. Tran was the spouse of Mr. Lam as defined by section 5F of the Migration Act 1958 (Cth). The Administrative Appeals Tribunal (AAT) was required to determine if the parties were in a genuine and continuing spousal relationship.

The Tribunal was tasked with assessing whether the relationship between Mr. Lam and Ms. Tran met the criteria for a "spouse" under section 5F of the Act. This definition requires a married relationship, a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and that the couple live together or not separately and apart on a permanent basis. The Tribunal considered various aspects of the relationship, including financial contributions, the nature of their household, social interactions, and their commitment to each other, as outlined in regulation 1.15A of the Migration Regulations 1994.

The Tribunal found that Mr. Lam had travelled to Vietnam multiple times since meeting Ms. Tran, including extended stays of several months where he lived with her. Evidence of financial transfers, telephone records, photographs of their wedding and time together, and confirmation of temporary residence were also considered. Despite the sponsor's previous relationships and children, and the visa applicant's daughter from a previous relationship, the Tribunal concluded that the evidence, including the sponsor's extended stays in Vietnam with the applicant and their joint social activities, indicated a genuine and continuing spousal relationship. Consequently, the Tribunal remitted the applications for reconsideration, directing that the visa applicant met the relevant criteria for the visa.