Le (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309, made by the primary visa applicant, who claimed to be the spouse of the review applicant, an Australian permanent resident. The dispute before the Administrative Appeals Tribunal (AAT) was whether the primary visa applicant was the spouse of the review applicant at the time of the visa application and at the time of the decision, as required by clauses 309.211(2) and 309.221 of Schedule 2 to the Migration Regulations 1994.

The Tribunal was required to determine if the parties were in a valid married relationship, which necessitates a mutual commitment to a shared life as a married couple to the exclusion of all others, a genuine and continuing relationship, and living together or not living separately and apart on a permanent basis, as defined by section 5F of the Migration Act 1958. In assessing these criteria, the Tribunal had to consider all circumstances of the relationship, including financial and social aspects, the nature of the household, and the commitment to each other, as outlined in regulation 1.15A(3).

The Tribunal found that the review applicant was an Australian permanent resident. While the primary visa applicant claimed a previous marriage, evidence was presented confirming its dissolution by divorce on 17 June 2013, prior to the relevant periods for the visa application. The Tribunal considered various aspects of the relationship, including joint financial commitments, business plans, shared responsibility for a child, engagement and wedding ceremonies, visits to Vietnam, and schooling options, all of which are relevant to assessing the genuineness and continuing nature of a spousal relationship.

Given the findings, the Tribunal remitted the applications for Partner (Provisional) (Class UF) visas to the Minister for reconsideration. The Tribunal directed that the primary visa applicant met specific criteria related to the spousal relationship under clauses 309.211, 309.212, 309.213, 309.221, and 309.222 of Schedule 2, and the secondary visa applicant met criterion 309.311.