Phan (Migration)

The applicant sought review of a decision by the Minister for Immigration to refuse his permanent partner (subclass 100) visa. The initial refusal occurred on 17 October 2014, on the basis that the applicant was not satisfied to be the spouse of his sponsor as required by law. The applicant appealed this decision to the Tribunal, which affirmed the refusal on 7 December 2015. Subsequently, the Federal Court quashed the Tribunal's decision on 20 September 2017, finding that the Tribunal had committed jurisdictional error by failing to provide a meaningful hearing, specifically by withholding documents requested by the applicant under section 362A of the Migration Act.

The primary legal issue before the Tribunal was whether the applicant could satisfy the criteria for a permanent partner (subclass 100) visa, particularly in light of the death of his sponsor. The Tribunal was required to determine if the applicant met the 'death of the sponsor' exception under regulation 100.221(3) of the Migration Regulations 1994. This involved assessing whether the applicant had first entered Australia as a holder of a Subclass 309 (Partner (Provisional)) visa and continued to hold it, whether he would have met other criteria but for the sponsor's death, and whether he could satisfy the Minister that their relationship would have continued had the sponsor not died.

The Tribunal reasoned that the applicant met the requirements of regulation 100.221(3)(a) as he had entered Australia on a Subclass 309 visa and continued to hold it. The Tribunal also accepted that the applicant met regulation 100.221(3)(b) by reference to subclause (2) of regulation 100.221, noting that subclause (2A) was not applicable. Crucially, the Tribunal considered the applicant's claim under regulation 100.221(3)(c), which requires the applicant to satisfy the Minister that the spousal relationship would have continued. While acknowledging the sponsor's death certificate as evidence of the death, the Tribunal gave it little weight regarding the continuation of the relationship, as it was a product of self-reporting. However, the Tribunal accepted the validity of the marriage between the applicant and the sponsor, which had been established in Vietnam in 2006 and previously accepted by the Department of Immigration. The Tribunal was satisfied that the applicant met the criteria under regulation 100.221(3) based on the evidence presented.