Nguyen (Migration)

The Administrative Appeals Tribunal considered an application for a subclass 820 Partner (Temporary) visa made by Ms. Nguyen. The visa was refused by the delegate on the basis that Ms. Nguyen did not satisfy the requirements of clauses 820.211 and 820.221 of the Migration Regulations 1994. These clauses require an applicant to be the spouse or de facto partner of an Australian citizen, permanent resident, or eligible New Zealand citizen at the time of application and at the time of the decision. Ms. Nguyen claimed to be the spouse of her sponsor, who is an Australian citizen.

The primary legal issues before the Tribunal were whether Ms. Nguyen and her sponsor were in a de facto relationship at the time of the visa application, and whether they were in a spouse relationship at the time of the Tribunal's decision. The Tribunal was required to consider the definitions of "de facto relationship" and "spouse" as provided in sections 5C and 5F of the Migration Act 1958, respectively, and to have regard to all the circumstances of the relationship, including financial and social aspects, the nature of the household, and the commitment to each other, as outlined in rules 109A(3) and 1.15(a)(iii).

The Tribunal noted that a de facto relationship requires a mutual commitment to a shared life to the exclusion of all others, that the relationship is genuine and continuing, and that the couple live together or do not live separately and apart on a permanent basis. For a spouse relationship, the parties must be married to each other under a marriage valid for the purposes of the Act, with a mutual commitment to a shared life as husband and wife, and the relationship must be genuine, continuing, and not involve permanent separation. The Tribunal observed that if parties are validly married, they may meet the spousal relationship requirements but not necessarily the de facto relationship criteria. The parties had provided a marriage certificate indicating they were married in Melbourne on 4 June 2022, which the Tribunal found to be a marriage valid for the purposes of the Act.