Nguyen (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, Subclass 801. The applicant, born in Vietnam, married an Australian citizen, also born in Vietnam, in Australia in 2013. The applicant had previously been granted a Subclass 820 partner visa. The core dispute revolved around whether the applicant was the spouse of the sponsor as defined by section 5F of the *Migration Act 1958* (Cth).

The court was required to determine if the parties were validly married, if the applicant was the spouse of the sponsoring partner, and crucially, if the parties were in a genuine and continuing spousal relationship. The definition of a spousal relationship under section 5F(2) of the Act requires the parties to be married under a valid marriage, demonstrate a mutual commitment to a shared life to the exclusion of others, and live together or not live separately and apart on a permanent basis. The court was directed to consider all circumstances of the relationship, including financial, social, household, and commitment aspects, as outlined in regulation 1.15A(3) of the *Migration Regulations 1994* (Cth).

The court found that the parties were validly married and that the sponsor was the sponsoring partner. Regarding the spousal relationship, the court noted evidence of a joint bank account for household expenses, joint liability for a bank loan, a deposit on a property, and financial assistance provided to the applicant's family in Vietnam, indicating a pooling of financial resources and shared management of finances despite financial stress. The court concluded that the matter should be remitted for reconsideration.

The application for the Partner (Residence) (Class BS) visa was remitted for reconsideration with a direction that the applicant met the criteria under cl.801.221 of Schedule 2 to the Regulations.