Nguyen (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309, made by the visa applicant, who claimed to be the spouse of the review applicant, an Australian citizen. The core dispute revolved around whether the parties were in a genuine and continuing spousal relationship as defined by the Migration Act 1994 (Cth). The decision was made by Hugh Sanderson, a Member of the Tribunal.

The Tribunal was required to determine whether the visa applicant and the review applicant were in a married relationship for the purposes of the Act. This involved assessing whether they were married to each other under a valid marriage, whether they had 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 making this assessment, the Tribunal had to consider all circumstances of the relationship, including financial aspects, the nature of their household, social aspects, and their commitment to each other, as outlined in regulation 1.15A(3) of the Migration Regulations 1994.

The Tribunal found that the parties were validly married in Vietnam on 8 October 2015, satisfying the requirement of a valid marriage. While acknowledging the parties lived in separate countries, limiting the weight that could be placed on financial aspects, the Tribunal noted the review applicant provided financial support to the visa applicant and her children, consistent with his income. The Tribunal considered that the limited financial information, in the context of international separation, did not preclude a finding of a genuine and continuing relationship with a mutual commitment to a shared life.

Consequently, the Tribunal remitted the visa application for reconsideration by the Minister. The direction was that the visa applicant met the criteria specified in clauses 309.211 and 309.221 of Schedule 2 to the Regulations, indicating that the spousal relationship requirements had been satisfied to that extent, with other criteria to be considered during the reconsideration.