Nguyen (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, subclass 801, by a 37-year-old Vietnamese national. The applicant sought review of a decision by the Migration Review Tribunal. The sponsor was a 48-year-old Australian citizen. The applicant and sponsor met on Christmas Day 2012 and married on 12 January 2013. Evidence submitted included a marriage certificate, statutory declarations from the parties and a friend, joint bank account statements, utility bills, and photographs.

The Tribunal was required to determine whether the applicant had demonstrated a genuine and continuing relationship with the sponsor, considering various aspects of their relationship as outlined in subregulation 1.15A(3) of the Migration Regulations 1994. These aspects included financial matters, the nature of their household, social interactions, and the nature of their commitment to each other. The Tribunal also needed to consider the applicant's eligibility for the subclass 801 visa, which requires holding a subclass 820 visa.

The Tribunal reasoned that the evidence, including statements about cohabitation since 2012, shared living expenses through a joint account, joint ownership of assets (the sponsor owned the home), working together, presenting as a married couple, and plans for future children, collectively indicated a genuine and continuing relationship. The Tribunal noted that the applicant had been living with the sponsor and her son since 2012, managed household chores, and provided care and emotional support, particularly following the sponsor's surgery. The Tribunal concluded that the applicant met the criteria for the subclass 801 visa, with the exception of holding a subclass 820 visa.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria under cl.801.221(2) of Schedule 2 to the Regulations, apart from the requirement to hold a subclass 820 visa.