NGUYEN (Migration)

This matter concerned an appeal by Mrs Thi Thuy Nguyen against a decision to refuse her Partner (Temporary) (Class UK) visa, Subclass 820. The sponsor was Mr Hoa An Nguyen, an Australian citizen. The delegate who refused the application had concerns about the genuineness of the claimed spousal relationship, particularly regarding the applicant's reasons for marriage, the cohabitation with the applicant's former partner, the lack of financial evidence, and the sufficiency of evidence regarding the nature of their commitment.

The court was required to determine whether the parties were in a genuine and continuing spousal relationship, as defined by section 5F of the Migration Act 1958 (Cth). This involved assessing whether they were validly married, had a mutual commitment to a shared life to the exclusion of others, and lived together or did not live separately and apart on a permanent basis. The court also had to consider all circumstances of the relationship, including financial, household, and social aspects, as well as the nature of their commitment, as outlined in regulation 1.15A(3) of the Migration Regulations 1994.

The Tribunal found that the parties gave coherent and credible oral evidence regarding their relationship. It was satisfied that the parties were validly married and that their living arrangements, while unusual due to cohabitation with the applicant's former partner, did not necessarily negate the genuineness of their spousal relationship. The Tribunal noted that the delegate had raised concerns about the financial aspects and the nature of the commitment, but concluded that the evidence presented, including joint travel and supporting statements, warranted further consideration.

Consequently, the Tribunal remitted the application for the visa to the Minister for reconsideration, directing that the applicant met the criteria for a Subclass 820 visa in relation to clauses 820.211 and 820.221 of Schedule 2 to the Regulations.