Nguyen (Migration)

This matter concerned an application for review of a decision to refuse a Partner (Migrant) (Class BC) visa, Subclass 100. The review applicant, Thi Thanh Huong Nguyen, a national of Vietnam, had her application for a Subclass 309 visa refused, and consequently, her Subclass 100 visa was also refused as it was contingent on the grant of the Subclass 309 visa. The Administrative Appeals Tribunal, constituted by Member Wan Shum, was tasked with determining whether the review applicant met the criteria for the Subclass 309 visa.

The primary legal issue before the Tribunal was whether the review applicant had demonstrated a genuine and continuing married relationship with the sponsoring spouse, as required by the Migration Regulations 1994, specifically clause 309.211. This involved assessing the financial, household, social, and commitment aspects of the relationship, as outlined in regulation 1.15A. The Tribunal was required to consider all the circumstances of the relationship based on the documentary evidence provided, particularly in light of the review applicant's failure to attend a scheduled hearing and provide further requested information.

The Tribunal reasoned that the evidence presented was insufficient to satisfy the criteria for a genuine and continuing married relationship. While some documentary evidence, including a joint bank account statement and photographs, was submitted, it was considered limited. The joint bank account statement only showed Centrelink payments and an ATM withdrawal, which did not demonstrate a pooling of financial resources given the applicant did not reside in Australia. There was no evidence of a shared household. The social evidence consisted of a few photographs and a reference to past travel, but there was no evidence of contact while the parties were apart. Crucially, the review applicant's refusal to attend the hearing meant there was no evidence of their current circumstances. The Tribunal concluded that there was no mutual commitment to a shared life as husband and wife to the exclusion of others, nor a genuine and continuing married relationship.

Consequently, the Tribunal affirmed the decision not to grant the visa.