Tran (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for a Partner (Provisional) (Class UF) visa, subclass 309. The review applicant, an Australian citizen, sought to have a visa granted to his spouse. The Tribunal was required to determine whether the visa applicant was the spouse or de facto partner of the review applicant, as defined by the Migration Act 1958 (Cth) (the Act).

The central legal issue was whether the parties had a genuine and continuing commitment to each other consistent with a married relationship at the time of the visa application and at the time of the Tribunal's decision. This required the Tribunal to assess various aspects of the relationship, including financial and social elements, household arrangements, and the nature of their commitment, as outlined in section 5F(2) of the Act and regulation 1.15A(3) of the Migration Regulations 1994. The Tribunal also considered the credibility of the review applicant as a witness, noting a representative's comment about his poor memory, though no medical evidence was provided to support this.

The Tribunal found that while the parties had a marriage ceremony in Vietnam and registered their marriage, there were significant concerns regarding the genuineness and continuing nature of their relationship. Specifically, the Tribunal noted a lack of evidence that the parties continued to present themselves to others as married, and no evidence of them living together when the visa applicant travelled to Vietnam. The Tribunal also expressed concern about the review applicant's credibility as a witness. Ultimately, the Tribunal was not satisfied that the parties had a mutual commitment to a shared life as a married couple to the exclusion of all others, nor that the relationship was genuine and continuing, or that they lived together.

Consequently, the Tribunal affirmed the decision not to grant the Partner (Provisional) (Class UF) visa, finding that the visa applicants did not satisfy the criteria for its grant.