Nguyen (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa by a woman born in Vietnam in 1990. The applicant had previously had a Skilled Independent (subclass 189) permanent resident visa cancelled due to the provision of bogus documents, and had subsequently been unlawful in Australia for significant periods. The applicant lodged the Partner visa application after meeting the sponsor in late 2014, with the relationship purportedly developing in late 2015. The Department raised concerns that the relationship was contrived, that the sponsor had been promised a sum of money to enter into the marriage, and that the applicant was in a de facto relationship with another person at the time of application. The Tribunal affirmed the decision not to grant the visa.

The primary legal issues before the Tribunal were whether the applicant was in a genuine spousal relationship with the sponsor at the time of the visa application and at the time of the decision, and, if so, whether there were compelling reasons to waive the Schedule 3 criteria. Regulation 1.15A of the Migration Regulations 1994 outlines the matters to be considered when assessing the genuineness of a spousal relationship, including financial aspects, the nature of the household, social aspects, and the nature of the commitment to each other. Schedule 3 of the Migration Regulations 1994 sets out criteria that must be satisfied by applicants who do not hold a substantive visa at the time of application, unless compelling reasons exist for a waiver.

The Tribunal considered the evidence in light of regulation 1.15A. While the applicant provided a birth certificate naming the sponsor as the father of her child born in 2017, she admitted to being pregnant with another person's child at the time of the Department's invitation to respond. The Tribunal noted the applicant's previous history of providing bogus documents and her periods of unlawful status. The Tribunal found that the applicant had not established that she was in a genuine spousal relationship with the sponsor, and therefore did not satisfy the criteria for the grant of the visa.

The Tribunal affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.