Nguyen (Migration)

This matter concerned an application for review of a decision to refuse a Partner (Temporary) (Class UK) visa. The applicant and sponsor were married in September 2015. The sponsor notified the Department of their separation in January 2017, stating the applicant continued to reside with him due to financial concerns and her limited English. The applicant later alleged family violence and that the relationship had ceased in August 2017, providing a statutory declaration and medical reports to support these claims. Their divorce was finalised in December 2018. The applicant subsequently claimed the relationship had recommenced in February 2021, moving back into the sponsor's home.

The primary legal issue before the Tribunal was whether the applicant was the de facto partner of the sponsor at the time of the decision, as defined by section 5CB of the Migration Act 1958 (Cth) and elaborated in regulation 1.09A of the Migration Regulations 1994 (Cth). This required consideration of all circumstances of the relationship, including financial aspects, the nature of the household, social aspects, and the nature of their commitment to each other. The Tribunal also had to assess the credibility of the applicant's claims, particularly her late assertion of a resumed relationship, which contrasted with her earlier claims of family violence and the sponsor's evidence.

The Tribunal found the sponsor's oral evidence to be clear, direct, and more credible than the applicant's, which it described as vague and unconvincing, especially where unsupported by independent evidence. Regarding financial aspects, the Tribunal accepted the sponsor's evidence that the applicant's weekly payment was rent, not a pooling of resources, and that they maintained separate finances and did not have joint assets or liabilities. In relation to the household, while they shared a bedroom, the Tribunal accepted the sponsor's explanation that this was due to the applicant's refusal to use a spare room, and that he was assisting her as a friend due to her vulnerability in a foreign country with limited English. The Tribunal concluded that the financial and household aspects of the relationship did not indicate a de facto relationship.

The Tribunal affirmed the delegate's decision not to grant the applicant a Partner (Temporary) (Class UK) visa, finding that the applicant had not established that she was the de facto partner of the sponsor at the time of the decision.