Nguyen (Migration)

This matter concerned an appeal by a visa applicant against a decision to affirm the refusal of a Partner (Temporary) (Class UK) visa, subclass 820. The primary issue before the Tribunal was whether the visa applicant and the sponsor were spouses at the time of the visa application, and if so, whether they continued to be spouses at the time of the decision or if any applicable exceptions to the cessation of the relationship applied. The applicant alleged a genuine relationship that had ceased, and also claimed non-judicially determined family violence perpetrated by the sponsor.

The Tribunal was required to determine if the parties met the definition of "spouse" for the purposes of the visa application, considering whether their relationship was genuine and continuing, and whether they lived together as spouses with a mutual commitment to a shared life to the exclusion of others. Further, the Tribunal had to assess whether the relationship had ceased and if any of the exceptions under clause 820.221 of the Migration Regulations 1994 were applicable, particularly in light of the applicant's claims of family violence.

The Tribunal found that the evidence did not establish a genuine and continuing spousal relationship at the time of the visa application. The Tribunal noted the short period the parties claimed to have known each other before marriage and cohabitation, the applicant's inconsistent evidence regarding their cohabitation and the dating of photographs, and the fact that the applicant was not named on the residential tenancy agreement. Furthermore, the Tribunal was not satisfied that the parties had ever pooled or shared their financial resources, nor that the sponsor was committed to an exclusive or intimate personal relationship with the visa applicant. Consequently, the Tribunal concluded that the applicant did not meet the criteria for being a spouse at the time of application, and therefore, none of the subsequent exceptions, including those relating to family violence, could apply.

The Tribunal affirmed the decision under review, finding that the visa applicant was not the spouse of the sponsor at the time of application and did not meet the requirements of subclause 820.211(2). The Tribunal was not satisfied that the parties were ever in a genuine spousal relationship which had ceased, and as the applicant had not held a prospective marriage visa, the remaining subclauses of 820.211 were not applicable.