Ngo (Migration)

This matter concerned an application by Mr Ngo for a Partner (Residence) (Class BS) visa, subclass 801. Mr Ngo had previously been granted a Partner (Temporary) (subclass 820) visa based on his relationship with Ms Phan. To be eligible for the subclass 801 visa, Mr Ngo was required to demonstrate that he continued to be Ms Phan’s spouse at the time of the decision. The Administrative Appeals Tribunal (the Tribunal) considered whether this requirement was met.

The primary legal issue before the Tribunal was whether Mr Ngo and Ms Phan were in a genuine and continuing married relationship, as defined by section 5F of the Migration Act 1958 (Cth) and elaborated in regulation 1.15A of the Migration Regulations 1994 (Cth). This required the Tribunal to assess whether they were married, had a mutual commitment to a shared life to the exclusion of others, their relationship was genuine and continuing, and they lived together or not separately and apart on a permanent basis. The Tribunal also had to consider all circumstances of the relationship, including financial, social, household, and commitment aspects.

The Tribunal refused Mr Ngo’s migration agent’s request for an adjournment of the hearing, despite the unavailability of Ms Phan. The Tribunal offered to contact Ms Phan by telephone and allowed additional time for submissions. Ms Phan did not answer the telephone when called, and she also failed to attend a resumed hearing. The Tribunal proceeded to make its decision after a further period of 28 days without receiving any further correspondence from Mr Ngo. The Tribunal affirmed the decision not to grant Mr Ngo the Partner (Residence) visa.