Nguyen (Migration)

This matter concerned an application for review of a decision regarding a Partner (Provisional) (Class UF) visa, subclass 309. The applicant, a Vietnamese national residing in Vietnam, sought to join his Australian citizen spouse who resided in Australia. The core dispute revolved around whether the parties met the criteria for a "married relationship" as defined by the Migration Act 1958 (Cth).

The court was required to determine whether the parties were validly married and, if so, whether they met the further requirements of a married relationship under section 5F(2) of the Act. Specifically, the court had to assess if the parties demonstrated a mutual commitment to a shared life as a married couple to the exclusion of all others, if their relationship was genuine and continuing, and if they lived together or did not live separately and apart on a permanent basis. In making these determinations, the court was obliged to consider all circumstances of the relationship, including financial aspects, the nature of the household, and the parties' commitment to each other, as outlined in regulation 1.15A(3) of the Migration Regulations 1994.

The court found that the parties had provided a marriage certificate confirming their marriage on 16 March 2018, satisfying the requirement of being married to each other under a marriage valid for the purposes of the Act. While the parties, being of mature age and having prior marriages and children, had not provided substantial evidence of joint financial activity, the Tribunal gave no negative weight to this given their life stage and international residence. The Tribunal also considered the nature of their household and commitment to each other, acknowledging the challenges of an offshore application where cohabitation might be limited.

Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration. The court directed that the visa applicant met the criteria under subclauses 309.211(2) and 309.221 of Schedule 2 to the Regulations, indicating that the remaining criteria for the subclass 309 visa should be considered by the Minister.