Nguyen (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Spouse), by a Vietnamese citizen against an Australian citizen. The central dispute before the Tribunal was whether the applicant was the spouse of the sponsor, as defined by the Migration Act 1994 (Cth) and the Migration Regulations 1994 (Cth).

The Tribunal was required to determine if the parties were in a spousal 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 and apart on a permanent basis. The Tribunal also needed to consider all circumstances of the relationship, including financial, household, social aspects, and the nature of their commitment to each other, as outlined in regulation 1.15A(3).

The Tribunal found that the parties had provided a marriage certificate showing they were married in New South Wales on 1 May 2016, which was a marriage valid for the purposes of the Act. However, the provided text indicates that the Tribunal did not fully consider all the remaining criteria for a spousal relationship, such as the mutual commitment, genuineness, continuation, and cohabitation aspects, nor the detailed factors under regulation 1.15A(3).

Consequently, the Tribunal remitted the application for the Partner (Temporary) (Class UK) visa, Subclass 820, for reconsideration by the Minister, with a direction that the applicant met the criteria under clauses 820.211(2) and 820.221 of Schedule 2 to the Regulations.