Ly (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Provisional) (Class UF) visa, Subclass 309. The dispute centred on whether the applicant and the review applicant, an Australian citizen, were in a genuine spousal relationship as defined by the Migration Act 1958 (Cth).

The Tribunal was required to determine if the parties met the criteria for a spousal relationship under section 5F of the Act. This involved assessing whether they were married to each other under a valid marriage, had a mutual commitment to a shared life to the exclusion of others, maintained a genuine and continuing relationship, and lived together or not separately and apart on a permanent basis. In making this assessment, the Tribunal had to consider all circumstances of the relationship, including financial and social aspects, the nature of their household, and their commitment to each other, as further detailed in regulation 1.15A of the Migration Regulations 1994.

The Tribunal found that the parties were validly married, accepting a Marriage Certificate from Vietnam as evidence of a marriage valid for the purposes of the Act. However, the Tribunal did not make findings on the remaining criteria for a spousal relationship. Consequently, the Tribunal remitted the applications for reconsideration by the Minister, directing that the primary applicant met the criteria for the Subclass 309 visa concerning their marital status and the requirements of clauses 309.211 and 309.221 of Schedule 2 to the Regulations. The secondary applicant's application was to be considered in light of the delegate's decision on the primary applicant's remaining criteria.