Phan (Migration)

This matter concerned an appeal by the applicant against a decision to refuse her Partner (Temporary) (Class UK) visa. The applicant, a citizen of Vietnam, arrived in Australia in November 2015 and married an Australian citizen on 31 July 2016. The sponsor passed away on 30 August 2018, prior to a decision being made on the visa application lodged on 15 September 2016. The applicant claimed to have lived in a genuine and ongoing marriage with the sponsor.

The primary legal issue before the Tribunal was whether the applicant was the spouse of the sponsor within the meaning of the *Migration Act 1958* (Cth) at the time of the visa application and at the time of the decision, notwithstanding the sponsor's death. This required the Tribunal to consider the definition of "spouse" under section 5F of the Act, which necessitates a valid marriage, a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and cohabitation. The Tribunal was required to have regard to all circumstances of the relationship, including financial and social aspects, the nature of the household, and the parties' commitment to each other, as detailed in regulation 1.15A(3) of the *Migration Regulations 1994* (Cth).

The Tribunal found that the evidence regarding the parties' relationship was vague and contradictory, particularly concerning how their financial resources were shared. Crucially, the Tribunal was not satisfied that the applicant was the spouse of the sponsor as defined by the Act, either at the time of application or at the time of the decision. The Tribunal concluded that the marriage appeared to be one of convenience, entered into to enable the applicant to remain in Australia with her family. Consequently, the Tribunal affirmed the decision not to grant the visa.