Nguyen (Migration)

This matter concerned an appeal by an applicant for a Partner (Temporary) (Class UK) visa (subclass 820) against a decision of the Migration Review Tribunal. The applicant, a woman from Vietnam, had lodged her application in May 2017, having met and married her Australian sponsor in March 2017. The relationship had been assessed as genuine and continuing, with significant evidence of financial and social commitment, as well as the applicant's role as a caregiver to her husband who had significant health issues. The hearing before the Tribunal was postponed due to COVID-19 restrictions, and tragically, the sponsor passed away before the rescheduled hearing date.

The primary legal issue before the court was whether the Tribunal had denied the applicant natural justice by making a decision that differed from what would likely have been made had the hearing proceeded on its original date. This involved considering whether the circumstances surrounding the postponement, specifically the COVID-19 restrictions and the sponsor's death, were beyond the applicant's control and how these factors impacted the assessment of her visa application, particularly concerning the genuine and continuing relationship requirement.

The court reasoned that because the postponement of the hearing was due to circumstances beyond the applicant's control, it would be a denial of natural justice if the final decision varied from what would have been made on the originally scheduled date. The Tribunal found that the evidence presented prior to the original hearing date, including extensive documentation of the couple's joint finances, social interactions, and the applicant's caring role, strongly supported a favourable finding. The court also noted that the applicant continued to meet the time of decision criteria, including a waiver for not holding a substantive visa at lodgement, and that the relationship was genuine and of a longstanding nature up until the sponsor's death.

Consequently, the Tribunal made a favourable decision, remitting the matter. The court was satisfied that the applicant had provided candid, consistent, and genuine evidence of her relationship with the sponsor, which was corroborated by multiple statutory declarations. The Tribunal concluded that the applicant's heartfelt evidence, combined with the substantial documentary proof, demonstrated a genuine and happy life shared with her husband, and her desire to remain in Australia to maintain their shared home.