NGUYEN (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Partner) visa, by an applicant who claimed to be the spouse of an Australian citizen sponsor. The core dispute revolved around whether the applicant and sponsor were in a genuine and continuing spousal relationship as defined by the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth). The decision was made by Deputy J.l Redfern Psm P.

The legal issues before the court were whether the applicant and sponsor were validly married and, if so, whether they met the requirements of a married relationship, as opposed to a de facto relationship, for the purposes of the visa application. This required an assessment of all the circumstances of their relationship, including financial aspects, the nature of their household, social aspects, and the nature of their commitment to each other, as stipulated by the Act and Regulations.

The court considered the definition of "spouse" under s 5F of the Act, which requires a married relationship involving mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and cohabitation without permanent separation. Regulation 1.15A(3) of the Migration Regulations 1994 was also central, outlining specific matters to be considered, such as financial pooling, living arrangements, social presentation, and commitment. The applicant had provided a marriage certificate, divorce orders for the sponsor's previous marriage, bank statements, statutory declarations, receipts, photographs, and correspondence. The court found that the parties were validly married on 13 August 2016.

The Tribunal remitted the application for the visa to the Minister with a direction that the applicant met the criteria for a Subclass 820 (Partner) visa, specifically referencing cl 820.211 and cl 820.221(1) of Schedule 2 to the Regulations. This indicates that while the validity of the marriage was established, further consideration of other criteria for the visa was required.