Nguyen (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Provisional) (Class UF) visa, subclass 309. The dispute concerned whether the visa applicant and the review applicant, an Australian citizen, were in a genuine and continuing spousal relationship as required by the Migration Regulations 1994. The Tribunal, presided over by Shane Lucas, was tasked with determining if the parties met the criteria for a valid marriage and a continuing spousal relationship.

The legal issues before the Tribunal were whether the visa applicant was the sponsor’s spouse at the time of the visa application, whether the visa applicant continued to satisfy this criterion at the time of the decision, and whether the visa applicant continued to be the spouse of the sponsor at the time of the decision. These determinations were to be made in accordance with section 5F of the Migration Act 1958, which defines a spouse as persons married to each other under a valid marriage, demonstrating a mutual commitment to a shared life to the exclusion of others, and living together or not permanently apart.

The Tribunal found that the parties were validly married in Vietnam, satisfying the requirement of a valid marriage. Regarding the spousal relationship, the Tribunal considered the financial aspects, noting that while the parties did not have a joint bank account and the visa applicant lived with her parents when the review applicant was not in Vietnam, they shared day-to-day expenses when living together in Ho Chi Minh City. The Tribunal acknowledged the review applicant as the principal breadwinner and noted evidence of financial transfers. Crucially, the Tribunal found that the parties were not living separately and apart on a permanent basis.

Consequently, the Tribunal remitted the application for a Partner (Provisional) (Class UF) visa for reconsideration by the Minister, with the direction that the visa applicant met the criteria under cl.309.211, cl.309.221, and cl.309.223 of Schedule 2 to the Regulations.