TRAN (Migration)

This matter concerned an application by Thi Kim Xuan Tran for a Partner (Temporary) (Class UK) visa, Subclass 820 (Partner). The applicant, a national of Vietnam, claimed to be the spouse of Richard Ho, an Australian citizen. The core dispute revolved around whether the parties were in a genuine and continuing married relationship as defined by the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). The decision was made by Ann Duffield, Senior Member, of the Administrative Appeals Tribunal.

The legal issues before the Tribunal were whether the applicant and the sponsor were in a married relationship that was valid for the purposes of the Act, and whether they demonstrated a mutual commitment to a shared life as a married couple to the exclusion of all others, that the relationship was genuine and continuing, and that they lived together or did not live separately and apart on a permanent basis. In assessing these matters, the Tribunal was required to consider all circumstances of the relationship, including the financial and social aspects, the nature of their household, and their commitment to each other, as outlined in regulation 1.15A(3) of the *Migration Regulations 1994*.

The Tribunal noted that the parties met in December 2015, began dating in December 2016, moved in together in April 2017, and registered their de facto relationship in December 2017. They were married in September 2019, and their daughter was born in December 2020. The Tribunal considered the definition of "spouse" under section 5F of the Act, which requires a valid marriage, mutual commitment, a genuine and continuing relationship, and cohabitation. It also acknowledged that for visa applications made on or after 9 November 2009, the 12-month relationship requirement does not apply if the de facto relationship is registered under a prescribed law, which was the case here.

The Tribunal concluded that the matter should be remitted for reconsideration. It directed that the applicant met the criteria for a Subclass 820 (Partner) visa under clauses 820.211(2)(a) and 820.221(1)(a) of Schedule 2 to the Regulations, indicating that further assessment of the remaining criteria was necessary.