Nguyen (Migration)

This matter concerned an appeal by Mrs Nguyen, a national of Vietnam, against the refusal of her Subclass 801 (Partner) visa application. Mrs Nguyen had arrived in Australia in 2009 and met her sponsor, Mr Nguyen, an Australian citizen, in 2011. They married in 2013, had a daughter who is an Australian citizen, and applied for a combined Subclass 820 and 801 visa. While the Subclass 820 visa was granted, the Subclass 801 visa was refused by the Departmental delegate. Mrs Nguyen subsequently applied to the Tribunal for a review of this decision.

The primary legal issue before the Tribunal was whether Mrs Nguyen was, at the time of the decision, the spouse of the sponsoring partner, as required by cl.801.221(2)(c) of the Migration Regulations 1994. This required the Tribunal to determine if the parties were in a married relationship, which, pursuant to s.5F of the Migration Act 1958, necessitates a valid marriage, a 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, social, household, and commitment aspects, as outlined in r.1.15A(3).

The Tribunal considered the definition of "spouse" under s.5F of the Act and the factors set out in r.1.15A(3) for assessing the genuineness and continuation of a married relationship. While the parties were validly married and living together with their child at Mr Nguyen's parents' residence, the Tribunal found that further consideration of the remaining criteria for the Subclass 801 visa was necessary. The Tribunal concluded that the appropriate course was to remit the application for reconsideration.

The Tribunal remitted the application for a Partner (Residence) (Class BS) visa for reconsideration, with a direction that Mrs Nguyen met the criteria under cl.801.221(2) of Schedule 2 to the Regulations.