Lang (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa by a male applicant from Vietnam, who claimed to be the spouse of an Australian citizen, Ms Lang. The primary issue before the Tribunal was whether the parties were in a genuine spousal relationship as defined by section 5F of the Migration Act 1958 (Cth). The applicant stated he was widowed in January 2015 and had two children from that marriage, who were included in the visa application. Ms Lang, an Australian citizen since 1998, stated she divorced her first husband in 2004 and also had two children from that relationship.

The Tribunal was required to determine if the parties met the criteria for a spousal relationship under section 5F(2) of the Act, which necessitates a valid marriage, mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and cohabitation or not living separately and apart on a permanent basis. In assessing these criteria, the Tribunal was directed by regulation 1.15A of the Migration Regulations 1994 to consider all circumstances of the relationship, including financial and social aspects, the nature of the household, and the commitment to each other.

The Tribunal found that the parties were validly married, as evidenced by a Commonwealth of Australia Marriage Certificate. However, the decision text indicates that further consideration of the remaining criteria for a spousal relationship was necessary, suggesting that the evidence presented regarding the financial, social, and household aspects, as well as the nature of their commitment, was not fully determinative at that stage. The Tribunal noted that the applicant had remarried shortly after his first wife's death and that the relationship had been brief prior to marriage, with brief cohabitation, and that Vietnamese social customs and a non-traditional wedding ceremony were also factors to be considered.

Consequently, the Tribunal remitted the applications for Partner (Provisional) (Class UF) visas for reconsideration by the Minister. The Tribunal directed that the primary visa applicant met the criteria under clauses 309.211 and 309.221 of Schedule 2 to the Regulations, and that the secondary applicants' applications should be considered in conjunction with the delegate's decision on the primary applicant satisfying the remaining criteria for the visa.