Nguyen (Migration)

The Administrative Appeals Tribunal considered an appeal by a visa applicant against a decision concerning a Partner (Provisional) (Class UF) visa, subclass 309. The primary issue was whether the applicant and the sponsor were spouses within the meaning of the *Migration Act 1958* (Cth) and its associated regulations, and whether the sponsor met the requirements for sponsoring a third partner visa.

The Tribunal was required to determine if the parties were in a married relationship, which necessitates a valid marriage, a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and cohabitation or not living separately on a permanent basis, as defined by section 5F of the Act. Additionally, the Tribunal had to consider regulation 1.20J of the *Migration Regulations 1994*, which imposes limitations on the number of partner sponsorships a person can undertake and requires a minimum period to elapse between sponsorships, unless compelling circumstances exist.

The Tribunal found that the primary applicant and sponsor had provided extensive evidence supporting their genuine and continuing relationship, including oral testimony and documentary evidence. It was satisfied that they shared a mutual commitment to a shared life to the exclusion of others, that their relationship was genuine and continuing, and that they did not live separately on a permanent basis, meeting the criteria under section 5F(2) at both the time of application and the time of the decision. However, the Tribunal noted that the sponsor had previously sponsored two other partners, triggering the limitations under regulation 1.20J. While the delegate had not been satisfied with the genuineness of the relationship, the Tribunal considered the sponsorship limitation issue to be before it.

The Tribunal concluded that the matter should be remitted for reconsideration. This was because, although the Tribunal was satisfied as to the genuineness of the relationship, the issue of compelling circumstances for the sponsor to exceed the sponsorship limit under regulation 1.20J had not been fully determined.