Ngo (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309. The review applicant, an Australian citizen, sought to have her spouse, the primary visa applicant, granted a visa. The core dispute revolved around whether the parties were spouses at the time of the visa application and continued to be so, with the delegate having drawn adverse inferences regarding the primary visa applicant's knowledge of the review applicant. The Administrative Appeals Tribunal (AAT) considered the evidence presented, including documentary evidence, photographs, and oral testimony from the parties.

The legal issues before the Tribunal were whether the primary visa applicant satisfied clauses 309.211 and 309.221 of Schedule 2 to the Migration Regulations 1994. These clauses relate to the requirement that the applicant be the spouse of an Australian citizen or permanent resident and that the relationship be genuine and continuing. The Tribunal was tasked with determining if the marriage was valid and if the parties were in a genuine and continuing spousal relationship, considering the various aspects outlined in regulation 1.15A, such as financial, household, social, and commitment aspects.

The Tribunal found that the marriage between the parties, registered on 18 May 2018, was valid. It also concluded that the parties were in a genuine and continuing spousal relationship. The Tribunal was satisfied with the evidence provided by the parties at the hearing, finding their testimony to be specific, forthright, and credible, despite initial concerns raised by the delegate regarding gaps in the primary visa applicant's knowledge. The Tribunal noted that the parties had been married for over 5 ½ years by the time of the hearing and had lived together during the review applicant's visits to Vietnam, and that they represented themselves as a couple.

Consequently, the Tribunal remitted the visa applications for reconsideration. It directed that the first named visa applicant met the criteria under cl 309.211 and cl 309.221. The secondary visa applicants, whose applications were refused on the basis of the primary applicant not meeting the criteria, were also to be reconsidered in relation to the secondary criteria for the subclass 309 visa.