Nguyen (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, by a national of Vietnam. The applicant sought to establish that she was the spouse of Mr Ngoc Tam Pham, an Australian citizen and the sponsor. The primary dispute revolved around whether the applicant and the sponsor were in a genuine and continuing spousal relationship as defined by the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth). The Administrative Appeals Tribunal reviewed the delegate's decision to refuse the visa.

The legal issues before the Tribunal were whether the applicant and the sponsor met the criteria for a spousal relationship under section 5F of the Act, specifically whether they were married to each other under a valid marriage, shared a mutual commitment to a shared life to the exclusion of others, had a genuine and continuing relationship, and lived together or not separately and apart on a permanent basis. The Tribunal was required to consider all circumstances of the relationship, including the financial and social aspects, the nature of their household, and their commitment to each other, as outlined in regulation 1.15A(3).

The Tribunal found that the parties had provided a valid marriage certificate, satisfying section 5F(2)(a). In assessing the remaining criteria, the Tribunal considered the evidence of a joint bank account, their consistent evidence regarding their employment histories and their joint operation of a restaurant business, including the pooling of financial resources and the establishment of a company. Based on this evidence, the Tribunal was satisfied that the requirements of section 5F(2) were met at both the time of application and the time of the decision.

Consequently, the Tribunal remitted the application for the Partner (Temporary) (Class UK) visa for reconsideration, with a direction that the applicant met the criteria for a Subclass 820 (Partner) visa under clauses 820.211 and 820.221 of Schedule 2 to the Regulations. The Minister was to consider the remaining criteria for the visa.