Nguyen (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, subclass 820, by a Vietnamese national sponsored by Ms Thi Thuy Hang Nguyen, an Australian citizen. The delegate of the Minister had refused the visa, finding that the applicant did not satisfy clauses 820.211(2)(a) and 820.221 of Schedule 2 to the Migration Regulations 1994, which require the applicant to be the spouse or de facto partner of the sponsor. The Tribunal reviewed the evidence and submissions concerning the genuineness and continuing nature of the parties' relationship.

The primary legal issues before the Tribunal were whether the applicant and sponsor were in a spouse or de facto relationship, and if so, whether this relationship was genuine and continuing. The Tribunal was required to consider the definition of a "spouse" under section 5F of the Migration Act 1958, which necessitates a valid marriage, a mutual commitment to a shared life as a married couple to the exclusion of others, a genuine and continuing relationship, and living together or not living separately and apart on a permanent basis. In assessing these requirements, the Tribunal had regard to the financial, social, and household aspects of the relationship, as well as the parties' commitment to each other, as outlined in regulation 1.15A(3).

The Tribunal found that the parties had provided a valid marriage certificate and that there was no evidence to suggest their marriage was not valid for the purposes of the Act. While allegations of a contrived relationship and financial impropriety were raised, the applicant and sponsor denied these claims. The Tribunal considered the financial transactions between the applicant and another individual, Ms Nhu Mai Pham, which appeared to relate to employment reimbursements, and found that these did not necessarily indicate a lack of genuineness in the applicant's relationship with the sponsor. Given the findings, the Tribunal remitted the application for a Partner (Residence) (Class BS) visa for reconsideration, directing that the applicant met the criteria for a Subclass 801 (Partner) visa under clauses 820.211(2)(a) and 820.221 of Schedule 2 to the Regulations.