Pham (Migration)

The applicant, Pham, sought judicial review of a decision made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs concerning a Partner (Residence) (Class BS) visa, Subclass 801 (Spouse). The applicant and their spouse are validly married and have been for nine years, living together for most of that period, and were found to be in a genuine and continuing relationship.

The primary legal issue before the Court was whether the delegate of the Minister had erred in law in refusing to grant the applicant the Subclass 801 visa. This involved an assessment of whether the delegate had properly considered all relevant evidence and applied the correct legal principles in determining the genuineness and continuing nature of the relationship between the applicant and their spouse.

Justice Grant found that the delegate's decision contained an error of law. The delegate had failed to adequately consider significant documentary evidence that supported the applicant's claim of a genuine and continuing relationship. This failure meant that the delegate's conclusion that the relationship was not genuine and continuing was not open to them on the evidence before them. Consequently, the Court remitted the decision to the Administrative Appeals Tribunal for redetermination.