Nguyen (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, Subclass 801. The applicant sought to establish that they were the spouse of the sponsor, an Australian permanent resident, for the purposes of the *Migration Act 1958* (Cth). The Tribunal was required to determine whether the applicant and sponsor were in a genuine and continuing spousal relationship.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Subclass 801 Partner visa, specifically whether they were the spouse of the sponsor at the time of the decision. This required an assessment of whether the parties were in a married relationship as defined by section 5F of the Act, which necessitates a valid marriage, 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 was directed to consider all circumstances of the relationship, including financial and social aspects, the nature of the household, and the parties' commitment to each other, as outlined in regulation 1.15A(3) of the *Migration Regulations 1994* (Cth).

The Tribunal found that the parties were validly married, as evidenced by a certificate of marriage. It also considered evidence of joint finances, including a joint bank account, joint superannuation, and shared utility bills, as well as evidence of shared household responsibilities and a degree of emotional support and companionship. The Tribunal concluded that, based on the evidence presented, the applicant met the criteria under clause 801.221(2) of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant meets the specified criteria for the Subclass 801 Partner visa.