NGUYEN (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, Subclass 309. The applicant, residing in Vietnam, claimed to be the spouse of the sponsor, an Australian citizen. The core dispute revolved around whether the applicant met the definition of a "spouse" as defined in section 5F of the Migration Act 1958 (Cth). The decision was made by a Member of the Tribunal.

The Tribunal was required to determine if the applicant and sponsor were in a married relationship for the purposes of the Act. This involved assessing whether they were married under a valid marriage, whether there was a mutual commitment to a shared life as a married couple to the exclusion of others, whether the relationship was genuine and continuing, and whether they lived together or not separately and apart on a permanent basis, as stipulated by section 5F(2) of the Act. The Tribunal also had to consider all circumstances of the relationship, including financial, household, and social aspects, and the nature of 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 11 July 2016, and there was no evidence to suggest the marriage was not valid for the purposes of the Act. However, the Tribunal concluded that the matter should be remitted for reconsideration. This was because, despite being satisfied that the applicant was the spouse of the sponsor within the meaning of section 5F, the Tribunal directed that the visa applicant met certain criteria for a Subclass 309 visa, implying that other criteria still required assessment. The application was therefore remitted to the Minister for reconsideration of the remaining criteria for the visa.