Tran (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, subclass 820. The applicant, a Vietnamese national, sought the visa in relation to her sponsor, an Australian citizen. The Tribunal was required to determine whether the relationship between the applicant and the sponsor met the definition of a 'spouse' as defined in section 5F of the Migration Act 1958 (Cth).

The central legal issue before the Tribunal was whether the relationship between the applicant and the sponsor constituted a "married relationship" for the purposes of the Act. This required consideration of whether the parties were married to each other under a valid marriage, whether they had a mutual commitment to a shared life to the exclusion of others, whether the relationship was genuine and continuing, and whether they lived together or not separately and apart on a permanent basis, as stipulated by section 5F(2) of the Act. In assessing these criteria, the Tribunal was obliged to have regard to all circumstances of the relationship, including the financial and social aspects, the nature of the household, and the parties' commitment to each other, as outlined in regulation 1.15A(3) of the Migration Regulations 1994.

The Tribunal found that the parties were validly married, satisfying section 5F(2)(a). However, the Tribunal noted that while significant additional evidence had been provided by the applicant prior to a hearing, including bank statements, taxation returns, communication records, statutory declarations, and photographs, there was insufficient evidence to fully assess all the financial aspects of the relationship as required by regulation 1.15A(3)(a). Specifically, the Tribunal highlighted a lack of substantiation for claims regarding shared finances and cash payments for rent and groceries, despite later evidence of a joint bank account and the applicant's employment. Consequently, the Tribunal determined that the matter should be remitted for reconsideration.

The Tribunal remitted the applications for Partner (Temporary) (Class UK) visas, with a direction that the first named applicant met the criteria under cl 820.211(2)(a) and cl 820.221(1)(a) of Schedule 2 to the Regulations. The Minister was directed to reconsider the remaining criteria for a Subclass 820 visa.