Nguyen (Migration) - [2025] ARTA 1653

Nguyen (Migration) [2025] ARTA 1653 (5 August 2025)

DECISION AND

REASONS FOR DECISION

Applicant:Tran Hiep Nguyen
Visa Applicant:  Chunli Xie
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2214736

Tribunal:General Member A Ryding
Place:Sydney
Date: 5 August 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, in accordance with the order that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
- cl 309.211, cl 309.212, cl 309.213, and cl 309.221 of Schedule 2 to the Regulations.

Statement made on 05 August 2025 at 9:25am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – financial, household and social aspects of relationship and nature of commitment – start and progress of relationship as older divorcees – validly married – languages, communications and review applicant’s travel to visit visa applicant – business activities and future plans – supporting statements – undetailed anonymous allegation given no weight – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 309.211(2), 309.221

CASE
He v MIBP [2017] FCAFC 206

STATEMENT OF REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs (the delegate) on 23 August 2022 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) Subclass 309 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the Subclass 309 visa under consideration in the present application to the Tribunal on 17 October 2019 on the basis of her relationship with the sponsor, who is the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional)). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant, which in this matter is the visa applicant.
In a decision dated 23 August 2022, the delegate refused to grant the visa on the basis that the visa applicant did not meet the legal requirements in cl 309.211 and 309.221 in Schedule 2 to the Regulations on the date of the delegate’s decision. This meant that the delegate was not satisfied that the visa applicant was the “spouse” of the review applicant, and was not satisfied that they were in a marriage valid for the purposes of the Act, have a mutual commitment to a shared life to the exclusion of all others, are in a genuine and continuing relationship, and live together or not live separately and apart on a permanent basis.
The review applicant applied to the Administrative Appeals Tribunal (the AAT) for review of the Department's decision on 6 October 2022. On 14 October 2024, the AAT became the Administrative…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nguyen (Migration)

Details

AGLC: Nguyen (Migration) [2025] ARTA 1653
Case: [2025] ARTA 1653
Decision Date: 5 August 2025

CaseChat Overview and Summary

The case of Nguyen involved the respondent, a citizen of Vietnam, who applied for a partner (provisional) visa, subclass 309. The primary issue before the court was the genuineness and continuity of the relationship between the applicant and the visa applicant, both of whom were older divorcees. The court needed to assess the financial, household, social aspects of the relationship, and the nature of the commitment, as well as the start and progress of the relationship. The relationship was validly married, and factors such as language barriers, communication, and the visa applicant's travel to visit the respondent were considered. The business activities and future plans of the couple, as well as supporting statements, played a role in the evaluation. The court gave no weight to an undetailed anonymous allegation.

The court found that the decision under review was flawed due to an imbalance in the consideration of the relationship's genuineness and continuity. The court considered that the visa applicant's submission and supporting evidence demonstrated a genuine and ongoing relationship. The court noted that the visa applicant's travel to Vietnam to visit the respondent, as well as the shared household and social aspects, were significant indicators of a genuine relationship. The court also emphasised the importance of the couple's future plans and business activities in assessing the continuity of the relationship. The anonymous allegation, lacking detail, did not impact the overall assessment.

In light of the findings, the court remitted the decision under review to the delegate for reconsideration, taking into account the genuineness and continuity of the relationship between the applicant and the visa applicant. The court stressed the importance of a balanced approach when assessing such factors and highlighted the need for proper consideration of all relevant evidence. The court's decision underscored the significance of demonstrating a genuine and ongoing relationship when applying for a partner (provisional) visa.

Orders