Nguyen (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning a Partner (Provisional) (Class UF) visa application made by a Vietnamese national, who was married to an Australian citizen. The primary issue before the Tribunal was whether the relationship between the applicants met the definition of a 'spouse' as defined in section 5F of the Migration Act 1958 (Cth).

The Tribunal was required to determine if the parties were validly married for the purposes of the Act, if they had a mutual commitment to a shared life as husband and wife to the exclusion of all others, if their relationship was genuine and continuing, and if they lived together or did not live separately and apart on a permanent basis. In assessing these matters, the Tribunal was directed to consider all circumstances of the relationship, including financial and social aspects, the nature of the household, and the commitment to each other, as outlined in regulation 1.15A(3) of the Migration Regulations 1994.

The Tribunal found that a Marriage Certificate issued by the Registry of Births, Deaths and Marriages Western Australia, evidencing a marriage on 12 June 2018, satisfied the requirement for a valid marriage under section 5F(2)(a) of the Act, in the absence of any contrary evidence. However, the Tribunal noted that while some evidence of financial aspects, such as joint bank accounts and money transfers, was provided, it was not sufficiently comprehensive to demonstrate a significant pooling of financial resources or sharing of day-to-day household expenses. Despite these observations regarding the financial aspects, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the applications for Partner (Provisional) (Class UF) visas for reconsideration, with a direction that the first named visa applicant met the criteria specified in clauses 309.211(2) and 309.221 of Schedule 2 to the Regulations. The Tribunal also indicated that the ability of the second and third named visa applicants to satisfy the secondary criteria in clause 309.3 should also be reconsidered.