Nguyen (Migration)

The Administrative Appeals Tribunal considered an appeal by a visa applicant and their sponsor, an Australian citizen, concerning a Partner (Provisional) (Class UF) visa, subclass 309. The core dispute revolved around whether the applicant and sponsor were in a spousal relationship as defined by the Migration Act 1958 (Cth). The Tribunal had before it the Department's file, its own file, and documentary evidence, including a Vietnamese marriage certificate.

The Tribunal was required to determine if the visa applicant and the sponsor were in a married relationship that satisfied the criteria set out in section 5F(2) of the Act. This involved assessing whether they were married to each other under a marriage valid for the purposes of the Act, whether there was a mutual commitment to a shared life as a married couple to the exclusion of all others, whether the relationship was genuine and continuing, and whether they lived together or did not live separately and apart on a permanent basis. In making this assessment, the Tribunal was directed to consider all circumstances of the relationship, including financial and social aspects, the nature of their household, and their commitment to each other, as further detailed in regulation 1.15A(3) of the Migration Regulations 1994.

The Tribunal found that the parties had provided a marriage certificate registered in Vietnam on 24 December 2015, and there was no evidence to suggest this marriage was not valid under the Act. However, the Tribunal noted that the assessment of the remaining criteria for a spousal relationship, specifically the mutual commitment, genuineness, continuity, and cohabitation aspects, required further consideration of the financial and social elements of their relationship, as well as the nature of their household and commitment to each other. The Tribunal concluded that the evidence presented, including broadly consistent and detailed oral evidence, witness statements, and significant documentary evidence, indicated a stable relationship where the parties kept in touch regularly via social media and had shared living arrangements during the sponsor's visits to Vietnam, despite living in different countries and having no major assets or joint liabilities.

Consequently, the Tribunal remitted the application for a Partner (Provisional) (Class UF) visa for reconsideration. The Tribunal directed that the visa applicant met the criteria under clauses 309.211, 309.212, 309.213, and 309.221 of Schedule 2 to the Regulations, with the remaining criteria to be considered by the Minister.