Nguyen (Migration)

This matter concerned an application for Partner (Temporary) (Class UK) visas, Subclass 820. The primary applicant sought review of a decision to affirm the refusal of her visa application, and the applications of two secondary applicants were also before the Tribunal. The central dispute revolved around the genuineness and continuation of the relationship between the primary applicant and her sponsor, an Australian citizen, and specifically, the validity of the primary applicant's marriage to her sponsor, which had been questioned due to an allegation concerning her prior marriage. The review was conducted by Member Anne Grant.

The legal issues before the Tribunal were whether the primary applicant was the spouse of her sponsor at the time of the visa application and at the time of the decision, as required by clauses 820.211 and 820.221 of Schedule 2 to the Migration Regulations 1994. This required determining if the parties were validly married, considering an allegation that the primary applicant was still in a relationship with her former husband. The Tribunal also needed to consider the broader aspects of the relationship, including financial, household, and social elements, and the nature of the commitment between the parties, as outlined in regulation 1.09A.

The Tribunal found the primary applicant's evidence to be frank and credible, accepting it as reliable. It also accepted the sponsor's evidence as reliable. The Tribunal determined that an allegation made to the Department regarding the primary applicant's ongoing relationship with her first husband was of doubtful reliability and possibly malicious, and that the evidence provided by the applicant regarding her divorce from her first husband was credible and accepted. The Tribunal concluded that the primary applicant had provided sufficient evidence to meet the criteria for a Subclass 820 visa in relation to her marriage and the genuineness of her relationship with the sponsor.

Consequently, the Tribunal remitted the applications for Partner (Temporary) (Class UK) visas for reconsideration. The Tribunal directed that the first named applicant met the criteria under clauses 820.211(2) and 820.221 of Schedule 2 to the Regulations, and that the second and third named applicants met the criteria under clauses 820.311(a) and (b) of Schedule 2 to the Regulations.