Lam (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa (Subclass 309) made by the visa applicant, who claimed to be in a spousal relationship with an Australian citizen, Ms Thi Nhien Lam. The visa applicant had migrated to Australia in 2012. The parties claimed to have met in late 2016, commenced communication via social media, and met in person in Vietnam in March 2017. Their relationship reportedly developed quickly, leading to a marriage ceremony on 31 August 2017, which was registered with Vietnamese authorities on 21 September 2017. The visa applicant's application was refused on 26 September 2018. The review applicant subsequently travelled to Vietnam on several occasions, claiming to reside with the visa applicant, until international travel restrictions due to the COVID-19 pandemic. The case was heard by Deputy President Justin Owen.

The primary legal issue before the Tribunal was whether the visa applicant was in a spousal relationship with the sponsor, as defined by the Migration Regulations 1994, specifically clauses 309.211(2) and 309.221. This required determining if the parties were married to each other under a marriage valid for the purposes of the Act, if there was a mutual commitment to a shared life as a married couple to the exclusion of all others, if the relationship was genuine and continuing, and if they lived together or not separately and apart on a permanent basis, as stipulated by section 5F(2) of the Act. The Tribunal was required to consider all circumstances of the relationship, including financial, household, social aspects, and commitment to each other, as outlined in regulation 1.15A(3).

The Tribunal found that the parties were validly married under Vietnamese law, satisfying section 5F(2)(a) of the Act. However, the Tribunal concluded that the matter should be remitted for reconsideration, with a direction that the visa applicant met the criteria under clauses 309.211 and 309.221 of Schedule 2 to the Regulations. This indicates that while the validity of the marriage was established, further consideration was required regarding the other aspects of the spousal relationship as defined by the Act and Regulations.