Tran (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Provisional) (Class UF) visa, Subclass 309, made by a visa applicant whose sponsor was an Australian citizen. The central dispute was whether the visa applicant and the sponsor were in a married relationship as defined by section 5F of the Migration Act 1958 (Cth).

The Tribunal was required to determine if the parties met the criteria for a married relationship under section 5F(2) of the Act, which necessitates a valid marriage, a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and cohabitation or not living separately and apart on a permanent basis. In assessing these requirements, the Tribunal had to consider all circumstances of the relationship, including 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 found that the parties were validly married in Vietnam, satisfying section 5F(2)(a). However, regarding the financial aspects, the Tribunal noted a lack of detailed information, attributing this to the parties living in separate countries and not possessing significant joint assets or liabilities. While they shared expenses during visits and demonstrated awareness of each other's financial circumstances, the Tribunal placed little weight on this aspect due to its limited nature. The Tribunal's decision indicates that further consideration of other criteria for the visa was necessary.

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