Lam (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa by a citizen of Vietnam, who was accompanied by her two children. The sponsor was an Australian citizen. The Tribunal was required to determine whether the applicant was the spouse of the sponsor within the meaning of the *Migration Act 1958* (Cth).

The legal issues before the Tribunal were whether the parties were in a genuine and continuing spousal relationship, and whether they met the requirements of section 5F of the *Migration Act 1958* (Cth). This section defines a "spouse" as persons who are married to each other, have a mutual commitment to a shared life 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 also considered the matters set out in regulation 1.15A of the *Migration Regulations 1994* (Cth), which include the financial and social aspects of the relationship, the nature of the household, and the commitment to each other.

The Tribunal found that while the parties were validly married, they did not meet the other requirements for a spousal relationship. The Tribunal considered the evidence presented, including money transfers, phone records, wedding cards, and photographs, but found the parties' evidence at the hearing to be inconsistent, evasive, untruthful, and unconvincing. Despite the parties' submission that inconsistencies should not necessarily lead to a conclusion that the marriage was not genuine, the Tribunal was not satisfied that there was a mutual commitment to a shared life, nor evidence of comfort or support from each other. The Tribunal noted that both parties had different reasons for their marriage.

Consequently, the Tribunal affirmed the delegate's decision not to grant the visa. The primary applicant did not meet the legislative requirements, and therefore the secondary applicants (her children) were also unable to satisfy the requirements for their visas.