Nguyen (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, subclass 801, by a Vietnamese woman sponsored by her Australian citizen husband. The core dispute revolved around whether the applicant and her sponsor were in a genuine and continuing spousal relationship, meeting the criteria for the visa. The decision was made by Donna Petrovich, a Member of the Administrative Appeals Tribunal.

The legal issues before the Tribunal were whether the applicant and sponsor were in a genuine and continuing relationship, had a mutual commitment to a shared life, and were married to the exclusion of all others, as required by the Migration Regulations 1994. Specifically, the Tribunal had to consider the financial and household aspects of the relationship, as well as the nature of their commitment to each other, in accordance with regulation 1.15A(3).

The Tribunal reasoned that the parties had provided extensive, consistent, and credible evidence demonstrating a genuine and continuing spousal relationship. They had been married since 2014, lived together for nine years with only brief separations, jointly owned a home, pooled financial resources, shared household expenses, and had a child together with plans for more. The Tribunal found that the parties were validly married and met the requirements of a married relationship under section 5F of the Migration Act 1958, including a mutual commitment to a shared life as a married couple to the exclusion of all others.

Given the findings, the Tribunal remitted the application for a Partner (Residence) (Class BS) visa for reconsideration by the Minister, with a direction that the applicant met the criteria under clause 801.221(2) of Schedule 2 to the Regulations.