Phung (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to refuse a Partner (Temporary) (class UK) (subclass 820) visa. The applicant's sponsor, to whom she was married, died after the visa application was lodged. The delegate's refusal was based on the applicant not satisfying clause 820.211 of the Migration Regulations 1994, which requires the applicant to be the spouse or de facto partner of an Australian citizen, permanent resident, or eligible New Zealand citizen at the time of application and decision.

The primary legal issue before the Tribunal was whether the applicant and the deceased sponsor were in a married relationship as defined by section 5F of the Migration Act 1958 (Cth). This definition requires that the parties be married to each other under a marriage valid for Australian law purposes, demonstrate a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship be genuine and continuing, with no permanent separation. The Tribunal was required to consider all circumstances of the relationship, including financial, household, and social aspects, as well as the nature of the commitment, in accordance with regulation 1.15A(3).

The Tribunal found that the parties were validly married in Australia in 2016, satisfying the first limb of the definition of 'spouse'. However, the delegate had refused the visa due to insufficient evidence regarding joint finances, a tenancy agreement in the applicant's son's name, spelling errors in subsequent tenancy agreements, and a lack of evidence for social aspects of the relationship. The Tribunal considered the extensive documentation submitted by the applicant, including numerous additional documents and supporting statements from various parties, in assessing the genuineness and continuing nature of the married relationship. The Tribunal ultimately remitted the decision for reconsideration.