LE (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant, born in Vietnam, had married the sponsor, an Australian citizen, in November 2015. The visa application was lodged shortly thereafter. The core dispute revolved around whether the applicant was the spouse of the sponsor as defined by section 5F of the Migration Act 1958 (Cth).

The court was required to determine if the parties were in a genuine and continuing spousal relationship, as defined by section 5F of the Act. This definition necessitates that the parties be married to each other under a valid marriage, demonstrate a mutual commitment to a shared life as husband and wife to the exclusion of all others, and live together or not live separately and apart on a permanent basis. The court was directed to consider all circumstances of the relationship, including financial and social aspects, the nature of their household, and their commitment to each other, as outlined in regulation 1.15A(3) of the Migration Regulations 1994.

The Tribunal found that the parties were validly married and that the sponsor was an Australian citizen. While the parties did not have joint ownership of major assets or liabilities, and the applicant’s family managed a mortgage on a Vietnamese property, they did share day-to-day household expenses from a joint bank account funded by the sponsor's salary, with the applicant's salary used for groceries and household supplies. The Tribunal concluded that the matter should be remitted for reconsideration, finding that the applicant met certain criteria for the Subclass 820 visa, implying that further assessment of the spousal relationship was required. The application was remitted to the Minister for reconsideration of the remaining criteria.