QUACH (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309, where the applicant claimed to be the spouse of an Australian citizen. The Tribunal was required to determine whether the parties were in a genuine and continuing spousal relationship as defined by section 5F of the Migration Act 1958 (Cth).

The primary legal issue before the Tribunal was whether the relationship met the criteria for a spousal relationship under section 5F(2) of the Act, which requires a valid marriage, a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and that the couple live together or not separately and apart on a permanent basis. The Tribunal also had to consider all the circumstances of the relationship, including financial, social, and household aspects, as outlined in regulation 1.15A of the Migration Regulations 1994.

The Tribunal found that the parties were validly married, accepting the Marriage Certificate from Vietnam as sufficient evidence. However, the Tribunal noted that while the parties had provided some supporting information to the Department and the Tribunal, including oral evidence, statutory declarations, and witness statements, there was a lack of comprehensive information regarding the financial, social, and household aspects of their relationship. The Tribunal acknowledged that the parties lived in different countries and that the COVID-19 pandemic and financial hardship may have impacted their ability to demonstrate these aspects. Given the limited evidence presented on these crucial elements, the Tribunal concluded that it could not make definitive findings on whether the relationship was genuine and continuing, and therefore remitted the application for reconsideration.

The Tribunal remitted the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant met the criteria under clauses 309.211 and 309.221 of Schedule 2 to the Regulations.