NGUYEN (Migration)

This matter concerned an appeal by Mr. Nguyen against a decision by the Department of Home Affairs to refuse his application for a Partner (Temporary) (Class UK) visa. Mr. Nguyen, who arrived in Australia in 2012 as a student, married Ms. Hua on 3 January 2016 and subsequently applied for a Partner visa. The delegate refused the application, finding insufficient evidence to establish a genuine and continuing married relationship. The case was heard by Deputy J.L. Redfern PSM.

The central legal issue before the court was whether Mr. Nguyen and Ms. Hua were in a genuine and continuing married relationship, as defined by section 5F of the Migration Act 1958 (Cth). This definition requires a mutual commitment to a shared life as a married couple to the exclusion of all others, that the relationship be genuine and continuing, and that the couple live together or not separately and apart on a permanent basis. The court was required to consider all circumstances of the relationship, including financial and social aspects, the nature of the household, and the commitment of the applicant and sponsor to each other.

The court noted that while the validity of the marriage was not in dispute, a lawful marriage alone was insufficient to satisfy the requirements of the Act. The delegate had made the decision based on limited documentary evidence and had not interviewed Mr. Nguyen or Ms. Hua. Despite a request for further evidence in May 2017, no response was received. However, the court considered additional statements provided by Mr. Nguyen's mother-in-law and father-in-law, and a friend, which supported the genuineness of the relationship. The court found that Mr. Nguyen met certain preliminary criteria for the visa, including being married to an Australian citizen and holding a substantive visa at the time of application.

Consequently, the court remitted the application for the visa to the Minister for further consideration. The court directed that the applicant be taken to meet the criteria specified in cl. 820.211 and cl. 820.221(1) of Schedule 2 to the Regulations, leaving the remaining criteria to be assessed.