NGUYEN (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa by the applicant, who claimed to be the spouse of an Australian citizen. The Administrative Appeals Tribunal (AAT) was required to determine whether the parties were in a genuine and continuing spouse relationship at the time of the decision. The applicant did not attend a scheduled hearing, and their representative stated the applicant was uncontactable, with no subsequent contact made with the Tribunal.

The Tribunal considered the requirements of clauses 820.211(2)(a) and 820.221 of the Migration Regulations 1994, which stipulate that an applicant must be the spouse or de facto partner of an eligible Australian citizen, permanent resident, or New Zealand citizen at the time of application and decision. The definition of "spouse" under section 5F of the Migration Act 1958 requires 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 noted that while the parties were validly married, the applicant had provided no current evidence of the ongoing nature of their spousal relationship since a Federal Court remittal in March 2017.

In its reasoning, the Tribunal applied regulation 1.15A of the Migration Regulations 1994, which mandates consideration of all circumstances of the relationship, including financial, household, social aspects, and the nature of the commitment to each other. Despite the case being remitted back to the Tribunal twice, no evidence had been provided since March 2017 regarding the financial aspects, household arrangements, social interactions, or commitment between the applicant and the sponsor. The Tribunal found that the lack of any current evidence, coupled with the applicant's non-attendance at the hearing and inability to be contacted, meant the criteria for a genuine and continuing spousal relationship were not met.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Partner (Temporary) (Class UK) visa, finding that the applicant did not satisfy the visa grant criteria.