Nguyen (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, subclass 801 (Partner). The applicant sought review of the decision to refuse this visa. The core of the dispute revolved around whether the applicant and his sponsor were in a genuine and continuing spousal relationship, as required by the *Migration Act 1958* (Cth) and associated regulations. The decision was made by Kira Raif, Senior Member, of the Administrative Appeals Tribunal.

The legal issues before the Tribunal were whether the applicant and the sponsor were spouses within the meaning of section 5F of the *Migration Act*, and if so, whether their relationship was genuine and continuing. This required the Tribunal to consider the definition of a married relationship, which includes being married to each other under a valid marriage, a mutual commitment to a shared life to the exclusion of others, the relationship being genuine and continuing, and the couple living together or not living separately and apart on a permanent basis. The Tribunal was also required to have regard to all circumstances of the relationship, including financial and social aspects, and the nature of the household and commitment to each other, as outlined in regulation 1.15A(3).

The Tribunal found that the applicant had provided incorrect information in a previous Visitor visa application, claiming to be in an ongoing spousal relationship when that relationship had ended years prior. While the applicant explained this as an error due to poor advice from a representative, the Tribunal was not satisfied that the applicant and sponsor were spouses. This lack of satisfaction extended to the genuineness and continuation of their relationship, despite evidence of shared Christian values, a child from the relationship, and some limited joint financial commitments. The Tribunal affirmed the decision not to grant the applicant the Partner (Residence) visa.