NGUYEN (Migration)

This matter concerned an appeal by an applicant for a Partner (Temporary) (Class UK) visa, Subclass 820, against a delegate's refusal of his application. The applicant, a Vietnamese national, sought to establish a genuine and continuing spouse relationship with his sponsor, an Australian citizen. The core of the dispute revolved around whether the parties had met the criteria for a genuine and continuing spouse relationship as required by the Migration Act 1958 (Cth) and associated regulations.

The Tribunal was required to determine whether the applicant and his sponsor were in a valid marriage, whether they demonstrated a mutual commitment to a shared life as a married couple to the exclusion of all others, whether their relationship was genuine and continuing, and whether they lived together or not separately and apart on a permanent basis. In making this determination, the Tribunal had to consider all circumstances of the relationship, including its financial and social aspects, the nature of their household, and their commitment to each other, as outlined in regulation 1.15A(3) of the Migration Regulations 1994.

The Tribunal's reasoning acknowledged initial concerns regarding the rapid progression of the relationship from meeting to marriage and the sponsor's history of gambling and associated debts. However, after considering extensive documentary evidence, including joint bank statements, travel documents, and statutory declarations, as well as oral evidence from the parties, the Tribunal concluded that the relationship was genuine and continuing. The Tribunal found that the passage of time, over six years since the marriage, and the parties' continuous cohabitation strongly supported the genuineness of their relationship. Furthermore, the Tribunal accepted the applicant's explanations regarding the sponsor's gambling winnings and the continued receipt of Centrelink payments, deeming them plausible and not adversely impacting the overall assessment of the relationship's financial aspects. The Tribunal was satisfied that the parties met the criteria for a genuine and continuing spouse relationship.

Consequently, the Tribunal remitted the applications for Partner (Temporary) (Class UK) visas. The direction was that the first applicant met the criteria for a Subclass 820 (Partner) visa concerning the spouse relationship and the second applicant met the criteria relating to being a child of the applicant. The matter was remitted to the Minister for consideration of the remaining visa criteria.