LE (Migration)

This matter concerned an application for a Partner (Provisional) visa (Subclass 309) by a Vietnamese national, sponsored by his Australian citizen partner. The dispute arose from the refusal of the visa application, leading to a review by the Tribunal. The parties, who had married in Vietnam after meeting in Australia, presented evidence of their relationship, including financial support from the sponsor, joint visits, and a shared pregnancy that tragically resulted in a stillborn child. The applicant had also previously been in Australia as an unlawful non-citizen before returning to Vietnam.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Subclass 309 Partner (Provisional) visa, specifically concerning the genuineness and continuing nature of his relationship with the sponsor. This required the Tribunal to consider various aspects of their relationship, including financial, household, social, and commitment elements, as outlined in the Migration Regulations 1994. The Tribunal also had to consider the impact of the applicant's visa history and the significant personal trauma the couple had experienced.

The Tribunal reasoned that while the parties had lived in different countries for periods and the applicant had a prior immigration history, the evidence, including statutory declarations, financial transfers, photographs, and evidence of online communication, supported a genuine and continuing relationship. The Tribunal noted the significant delay in processing the application and the profound emotional distress the couple had endured, particularly the loss of their child and the sponsor's current high-risk pregnancy. It concluded that the decision to refuse the visa had been made without a full hearing of all necessary considerations.

Consequently, the Tribunal remitted the application for reconsideration, directing that the visa applicant met the criteria for a Subclass 309 Partner (Provisional) visa. The Tribunal urged that the application be processed without further delay, acknowledging the sensitive circumstances and the passage of time since the initial refusal.