Nguyen (Migration)

This matter concerned an application for review of a delegate's decision to refuse Partner (Provisional) (Class UF) visas to Mrs Thi Thu Nguyet Phan and her two sons, Mr Thanh Vinh Nguyen and Mr Thanh Quang Nguyen. The primary applicant, Mrs Phan, sought the visa on the basis of her spousal relationship with the review applicant, Mr Van Nghiem Nguyen, an Australian citizen. The delegate had refused the visas, finding that the applicants had not satisfied the criteria for a genuine spousal relationship.

The central legal issue before the Tribunal was whether Mrs Phan and Mr Nguyen were in a genuine spousal relationship as defined by the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). This required the Tribunal to consider whether they were married to each other under a valid marriage, whether there was a mutual commitment to a shared life as a married couple to the exclusion of all others, whether the relationship was genuine and continuing, and whether they lived together or not separately and apart on a permanent basis. In assessing these elements, the Tribunal was required to have regard to all the circumstances of the relationship, including the financial and social aspects, the nature of their household, and their commitment to each other.

The Tribunal found that the parties were validly married, having met in August 2015 and married in April 2016. However, the Tribunal noted that the applicants had been married for 64 months and lived together for only 23 months, with periods of separation due to circumstances beyond their control. The Tribunal considered the evidence regarding the financial and social aspects of their relationship, as well as the nature of their household and their commitment to each other. Ultimately, the Tribunal concluded that while the parties were validly married, the evidence did not sufficiently establish a genuine and continuing spousal relationship that met the legislative requirements.

Consequently, the Tribunal remitted the applications for reconsideration by the delegate in relation to the first and third named visa applicants. The decision of the delegate in relation to the second named visa applicant was affirmed.