Nguyen (Migration)

This matter concerned an appeal by Mr Hong Duong Nguyen (the review applicant) against a decision by the Minister regarding a Partner (Provisional) (Class UF) visa (Subclass 309) for his wife (the visa applicant). The core dispute revolved around whether the parties were in a genuine and continuing spousal relationship as required by the Migration Regulations 1994. The decision was made by Moira Brophy, a Member of the Tribunal.

The Tribunal was required to determine whether the visa applicant and the review applicant were in a genuine spousal relationship at the time the visa application was made and whether that relationship continued to be genuine at the time of the Tribunal's decision. This involved assessing whether the parties met the definition of a married relationship under section 5F of the Migration Act 1958, which includes being validly married, having a mutual commitment to a shared life to the exclusion of others, and living together or not living separately and apart on a permanent basis. The Tribunal also had to consider all circumstances of the relationship, including financial, household, and social aspects, as well as the nature of their commitment, as outlined in regulation 1.15A(3) of the Migration Regulations 1994.

The Tribunal found that the parties generally provided consistent evidence regarding how they met, their time living together when the review applicant visited Vietnam and the visa applicant visited Australia, and their knowledge of each other's circumstances and future plans. The validity of their marriage was not disputed. However, the delegate who made the original decision had raised concerns about the lack of financial intermingling, limited weight given to shared household evidence, doubts about how the parties presented themselves to family and friends as a married couple, and concerns about inconsistencies in interview answers. Despite these concerns, the Tribunal concluded that the evidence presented, including the consistency of their oral testimony and the existence of a valid marriage, warranted further consideration.

Consequently, the Tribunal remitted the application for the visa to the Minister for reconsideration. The direction was that the visa applicant met the criteria under cl 309.211 and cl 309.221 of Schedule 2 to the Regulations, and that the secondary visa applicants met the criteria under cl 309.312 of Schedule 2 to the Regulations.