Nguyen (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa (Subclass 309). The review applicant, an Australian citizen, sought to sponsor the visa applicant, a Vietnamese citizen, to join her in Australia. The core dispute revolved around whether the parties were in a genuine and continuing de facto relationship as required by the Migration Regulations 1994. The Tribunal was tasked with determining if the visa applicant met the criteria for a de facto partner of an Australian citizen.

The legal issues before the Tribunal were whether the parties were in a de facto relationship, as defined by section 5CB of the Migration Act 1958, and consequently whether the visa applicant met the requirements of clauses 309.211(2) and 309.221 of Schedule 2 to the Regulations. To make this determination, the Tribunal was required to consider all the circumstances of the relationship, including the financial, household, social aspects, and the nature of the parties' commitment to each other, as outlined in regulation 1.09A(3).

The Tribunal reasoned that to establish a de facto relationship, there must be a mutual commitment to a shared life to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together or not live separately on a permanent basis. The Tribunal considered evidence relating to shared finances, including the joint operation of a public swimming pool and the ownership of a house gifted by the review applicant's aunt and uncle, which was registered in the visa applicant's name. The Tribunal accepted the explanation that joint ownership was not possible as the property was registered to a husband and wife. The Tribunal also considered the nature of the household and the social aspects of the relationship, noting the parties' travel to Vietnam to live together and the simulated wedding photographs.

Ultimately, the Tribunal remitted the application for reconsideration by the Minister. The Tribunal directed that the first named visa applicant met the criteria for a Subclass 309 visa concerning clauses 309.211, 309.221, and regulation 2.03A, indicating that the primary hurdle of establishing a de facto relationship had been satisfied. The reconsideration by the Minister would address any remaining criteria for the visa, including those pertaining to secondary applicants.