PHAM (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa by Mr Tran, a Vietnamese national, sponsored by Ms Pham, an Australian citizen. The central dispute revolved around whether Mr Tran and Ms Pham were in a genuine and continuing de facto relationship 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 Schedule 2 to the Migration Regulations 1994. The Tribunal was tasked with determining the validity of their claimed de facto relationship, considering their history, living arrangements, and commitment to each other.

The legal issues before the Tribunal were whether Mr Tran and Ms Pham met the criteria for being in a de facto relationship as defined by section 5CB of the Migration Act 1958 and elaborated in regulation 1.09A of the Migration Regulations 1994. This required assessing all circumstances of their relationship, including financial aspects, the nature of their household, social aspects, and their commitment to each other, to determine if they had a mutual commitment to a shared life to the exclusion of all others, if the relationship was genuine and continuing, and if they lived together or did not live separately and apart on a permanent basis.

The Tribunal found that both Mr Tran and Ms Pham provided credible and consistent oral evidence. It considered the documentary evidence and the parties' relationship history, including their meeting in 2013, their cohabitation from early 2014 until Mr Tran's departure from Australia in March 2016, and their plans for the future. The Tribunal concluded that the matter should be remitted for reconsideration, directing that the visa applicant met the specified criteria for a Subclass 309 visa, including clauses 309.211(2), 309.221, and regulation 2.03A.