Nguyen (Migration)

This matter concerned an appeal by Mr Trong Tuan Nguyen against a decision regarding his application for a Partner (Temporary) (Class UK) visa, Subclass 820. Mr Nguyen, a citizen of Vietnam, claimed to have been in a relationship with Ms Thi Kim Khe, an Australian Permanent Resident, since January 2018, and they married on 15 July 2018. The Administrative Appeals Tribunal was tasked with reviewing the decision concerning the temporary stage of the partner visa application.

The primary legal issue before the Tribunal was whether Mr Nguyen was the spouse of Ms Khe at the time of his visa application and at the time of the Tribunal's decision. This required an assessment of whether the parties met the criteria for a spouse or de facto partner as defined by the Migration Act 1994 and the Migration Regulations 1994, specifically clauses 820.211(2)(a) and 820.221. The Tribunal also considered the relevance of evidence relating to events occurring after the visa application date, in line with established case law, to determine the genuineness and continuing nature of the relationship at the relevant times.

The Tribunal reasoned that evidence of subsequent events could be considered if it logically demonstrated the existence or non-existence of the relationship at the time of application. It noted that Mr Nguyen had provided limited documentary evidence to the Department of Home Affairs but furnished further evidence to the Tribunal. The Tribunal applied the definition of "spouse" under section 5F of the Act, which requires a valid marriage, a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and cohabitation. The assessment of these criteria involved considering all circumstances of the relationship, including financial, household, and social aspects, as well as the nature of the commitment, as outlined in regulation 1.15A(3).

Given the findings, the Tribunal remitted the application for the visa to the Minister for reconsideration, with a direction that Mr Nguyen met the specified criteria for a Subclass 820 partner visa.