LE (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, Subclass 309, where the visa applicant claimed to be the spouse of the review applicant, an Australian citizen. The central dispute revolved around whether the parties were in a genuine and continuing married relationship as defined by the Migration Act 1994. The decision was made by Hugh Sanderson.

The primary legal issue before the Tribunal was to determine if the visa applicant met the criteria for a spouse relationship under section 5F of the Act, specifically whether the parties were married, had a mutual commitment to a shared life to the exclusion of others, were in a genuine and continuing relationship, and lived together or not separately and apart on a permanent basis. This required consideration of 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 in Vietnam, satisfying section 5F(2)(a). While acknowledging the limited sharing of financial resources due to the parties living in separate countries and their financial independence, the Tribunal accepted that the money transfers from the review applicant to the visa applicant, coupled with discussions about their financial affairs and the review applicant meeting expenses when together, indicated a genuine and continuing relationship in light of their circumstances. The Tribunal also noted evidence of regular communication, social recognition of the relationship, the birth and care of their child, and plans to purchase a home, which collectively supported the genuineness of their commitment.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the visa applicant met the criteria under clauses 309.211 and 309.221 of Schedule 2 to the Regulations.