Nguyen (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Spouse), by an applicant claiming to be the spouse of an Australian citizen sponsor. The core dispute revolved around whether the parties were in a genuine and continuing spousal relationship as defined by the Migration Act 1958 (Cth). The decision was made by David Crawshay of the Tribunal.

The legal issues before the Tribunal were whether the applicant and sponsor were in a married relationship for the purposes of the Act, and specifically whether they met the criteria for a spouse relationship under s.5F of the Act, which requires a valid marriage, a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and cohabitation. The Tribunal was required to consider all circumstances of the relationship, including financial and social aspects, the nature of their household, and their commitment to each other, as outlined in r.1.15A(3) of the Migration Regulations 1994.

The Tribunal found that the parties were validly married under the Marriage Act 1961, satisfying s.5F(2)(a). However, the Tribunal noted that substantial evidence had been provided that was not before the original decision-maker. Given this, and the need to consider all aspects of the relationship as mandated by the regulations, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that the applicant met the criteria under cl.820.211 and cl.820.221 of Schedule 2 to the Regulations.