Nguyen (Migration)

This matter concerned an appeal by a visa applicant against a decision regarding a Partner (Provisional) (Class UF) visa, subclass 309. The core dispute revolved around whether the visa applicant was the "spouse" of the sponsor as defined by section 5F of the *Migration Act 1958* (Cth). The Tribunal, presided over by Member Helena Claringbold, was tasked with determining the validity and genuineness of the spousal relationship in the context of the visa application.

The legal issues before the Tribunal were whether the parties were validly married and, crucially, whether they were in a spousal relationship as defined by the Act. The definition of "spouse" under section 5F requires that the parties be married to each other under a valid marriage, demonstrate a mutual commitment to a shared life as a married couple to the exclusion of others, that the relationship be genuine and continuing, and that they live together or not separately and apart on a permanent basis. The Tribunal was 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* (Cth).

The Tribunal found that the sponsor was an Australian citizen and that the parties were validly married. However, upon reviewing the evidence, particularly concerning the financial aspects of the relationship, the Tribunal noted a lack of joint asset ownership or liabilities, and limited pooling of financial resources. While the sponsor provided intermittent financial assistance for special occasions and assisted with daily expenses when living in Vietnam, the parties lived in different countries and did not pool their financial matters in a comprehensive manner. Consequently, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the applications for Partner (Provisional) (Class UF) visas for reconsideration. It directed that the first-named visa applicant met specific criteria, namely cl.309.211(2) and cl.309.221 of Schedule 2 to the Regulations. The secondary visa applicants were also to be considered against the relevant secondary criteria for the grant of the visas.