Nguyen (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309. The applicant claimed to be the spouse of an Australian citizen. The Tribunal was required to consider whether the parties were in a genuine and continuing married relationship, as defined by section 5F of the Migration Act 1958 (Cth).

The legal issues before the Tribunal were whether the parties met the criteria for a spouse relationship under section 5F(2) of the Act, specifically whether they had a mutual commitment to a shared life to the exclusion of others, whether their relationship was genuine and continuing, and whether they lived together or not separately and apart on a permanent basis. The Tribunal was also required 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.

The Tribunal found that the parties were validly married for the purposes of the Act. While the sponsor had a prior marriage and child support obligations to his ex-wife, the Tribunal noted there was no indication that the current relationship was fraudulent. The Tribunal considered the duration of the relationship, the parties' living arrangements, and their commitment to each other, concluding that the relationship was widely recognised as long-term.

Consequently, the Tribunal remitted the application for the visa to the Minister for reconsideration, directing that the visa applicant met the criteria under cl.309.211 and cl.309.221 of Schedule 2 to the Regulations.