Marcos (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309, made by a Vietnamese citizen, aged 56, sponsored by an Australian citizen, aged 73. The dispute centred on whether the parties were in a genuine and continuing married relationship, as required by the Migration Regulations 1994. The Tribunal was tasked with reviewing the decision to refuse the visa.

The primary legal issues before the Tribunal were whether the parties were validly married and, if so, whether they had a mutual commitment to a shared life as a married couple to the exclusion of all others, whether their relationship was genuine and continuing, and whether they lived together or did not live separately and apart on a permanent basis, as stipulated by section 5F of the Migration Act 1958. The Tribunal was required to consider all circumstances of the relationship, including financial, household, and social aspects, as well as the nature of 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 according to Vietnamese law, satisfying the requirement of section 5F(2)(a). While acknowledging that the parties had lived in different countries for periods, leading to limited financial, household, and social interaction, the Tribunal considered the extensive documentary evidence provided on review. This evidence included remittances, purchases for a matrimonial home, tax returns, rental receipts, photographs, and communication records, which, along with plausible oral evidence, supported the genuineness of the relationship. The Tribunal also noted the sponsor's repeated requests for priority processing due to health issues and age, which were initially refused but eventually granted.

Ultimately, the Tribunal remitted the application for reconsideration by the Minister. The Tribunal directed that the visa applicant met the criteria under clauses 309.211 and 309.221 of Schedule 2 to the Migration Regulations 1994, indicating that the remaining criteria for the Subclass 309 visa should be assessed.