Pham (Migration)

This matter concerned an appeal by Nguoc Thuy Pham against a decision regarding her partner's visa application. The visa applicant, Van An Nguyen, a citizen of Vietnam, had been in Australia unlawfully for a significant period before meeting Ms. Pham. They married, and subsequently, Mr. Nguyen applied for a Partner (Provisional) (Class UF) visa (Subclass 309). The delegate had found the relationship likely to be contrived for immigration purposes.

The primary legal issue before the Tribunal was whether Mr. Nguyen was the spouse or de facto partner of Ms. Pham at the time of the visa application and at the time of the decision, as required by clauses 309.211(2) and 309.221 of the Migration Regulations 1994. This required an assessment of whether they were in a married relationship, which, under section 5F of the Migration Act 1958, necessitates a valid marriage, a mutual commitment to a shared life as a married couple to the exclusion of others, a genuine and continuing relationship, and cohabitation or not living permanently apart. The Tribunal was directed to consider all circumstances, including financial, household, social aspects, and the nature of their commitment, as outlined in regulation 1.15A(3).

The Tribunal found that the parties were validly married according to Queensland law, satisfying section 5F(2)(a). Despite Mr. Nguyen's lengthy unlawful overstay in Australia, which the Tribunal acknowledged as a serious breach, it considered the sincerity and consistency of the parties' evidence, including declarations from third parties. The Tribunal was satisfied that the relationship was genuine, committed, and mutually supportive, noting the positive dynamics that encouraged its continuation, including the best interests of Ms. Pham’s Australian-born children who had a strong relationship with Mr. Nguyen.

Consequently, the Tribunal remitted the application for a Partner (Provisional) (Class UF) visa for reconsideration by the Minister, with a direction that the visa applicant met the criteria under clauses 309.211 and 309.221 of Schedule 2 to the Regulations.