Nguyen (Migration)

This matter concerned an appeal by a visa applicant and her sponsor against a decision by the Migration Review Tribunal. The visa applicant sought a Partner (Provisional) (Class UF) visa (Subclass 309). The core dispute revolved around whether the applicant and sponsor were in a genuine and continuing married relationship, as required by the relevant migration regulations.

The Tribunal was required to determine if the visa applicant met the criteria for a Subclass 309 visa, specifically whether she was the spouse of an Australian citizen and if their relationship was genuine and continuing. This involved assessing whether the parties were validly married and whether they demonstrated a mutual commitment to a shared life as a married couple, lived together or not permanently apart, and had a genuine and continuing relationship, considering all aspects including financial, household, and social elements, as well as their commitment to each other.

The Tribunal found that the parties had provided a marriage certificate registered with Vietnamese authorities, which, in the context of Vietnamese culture and the circumstances of the couple living apart, was accepted as evidence of a valid marriage for the purposes of the Act. The Tribunal also considered the financial aspects, noting the sponsor's regular financial support of the applicant, and acknowledged that due to their geographical separation, joint bank accounts and shared property were not possible. The Tribunal concluded that the matter should be remitted for reconsideration by the Minister, with a direction that the visa applicant met the criteria under cl.309.211 and cl.309.221 of Schedule 2 to the Regulations.