NGUYEN (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) (Subclass 309) visa. The review applicant, Mr Nguyen, claimed to be the spouse of the visa applicant, Ms Trinh. The core dispute revolved around whether Mr Nguyen and Ms Trinh were in a genuine spousal relationship as required by the Migration Regulations 1994. The decision was made by Senior Member James Lambie of the Tribunal.

The Tribunal was required to determine whether the parties met the criteria for a spouse relationship under section 5F of the Migration Act 1958 and regulation 1.15A of the Migration Regulations 1994. This involved assessing whether they were validly married, had a mutual commitment to a shared life to the exclusion of all others, and whether their relationship was genuine and continuing, living together or not living separately and apart on a permanent basis. To form this opinion, the Tribunal had to consider all circumstances of the relationship, including financial, household, and social aspects, as well as the nature of their commitment to each other.

The Tribunal's reasoning highlighted several concerning aspects of the relationship. It noted the unusual circumstances of how Mr Nguyen and Ms Trinh met, given their prior familial connections and the timing of their respective divorces and new relationships. The Tribunal also considered the informal nature of financial arrangements, the possibility of rehearsed evidence and staged photos, and the geographical separation between the parties. The age gap, the review applicant's health and finances, and the visa applicant's comparatively higher status and finances were also factors taken into account. The evasiveness of the review applicant regarding contact with his former spouse further contributed to a reasonable suspicion of a contrived marriage.

Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that the first named visa applicant met the criteria under cl.309.211 of Schedule 2 to the Regulations, indicating that while some criteria were met, further consideration of the overall genuineness of the spousal relationship was necessary.