Nguyen (Migration)

This matter concerned an appeal by a visa applicant against a decision to refuse a Partner (Provisional) (Class UF) visa, subclass 309. The Federal Court had previously remitted the matter for reconsideration. The core dispute revolved around whether the relationship between the visa applicant and the review applicant met the definition of ‘spouse’ as stipulated in section 5F of the Migration Act 1958 (Cth).

The Tribunal was required to determine whether the marriage between the parties was valid for the purposes of the Act, whether they were in a mutual commitment to a shared life as husband and wife to the exclusion of all others, whether the relationship was genuine and continuing, and whether they lived together or not separately and apart on a permanent basis. In making this assessment, the Tribunal was obliged to consider all circumstances of the relationship, including financial, social, household, and commitment aspects, as detailed in regulation 1.15A of the Migration Regulations 1994.

The Tribunal found that the previous decision-maker had erred by failing to properly consider the reasons advanced in statutory declarations from family members regarding the genuineness of the relationship. The Federal Court had identified this error, noting that the Tribunal had approached the matter on the erroneous basis that no reasons were provided, when in fact, numerous reasons had been set out. This failure to consider the evidence constituted a failure to discharge the statutory obligation to consider the application.

Consequently, the Tribunal remitted the application for a Partner (Provisional) (Class UF) visa for reconsideration. The Tribunal directed that the visa applicant met the criteria specified in clauses 309.211(2) and 309.221 of Schedule 2 to the Regulations, indicating that the remaining criteria for the visa were to be considered.