Tran (Migration)

This matter concerned an appeal by a visa applicant against a decision regarding a Partner (Provisional) (Class UF) visa, Subclass 309. The review applicant, an Australian citizen, had previously been married when he met the visa applicant in Vietnam in 2017. Following his divorce, they became engaged and married in April 2019, with their marriage registered in May 2019. The visa applicant applied for the partner visa in June 2019.

The primary legal issue before the Tribunal was whether the visa applicant and the review applicant were spouses for the purposes of the *Migration Act 1958* (Cth) at the time of the visa application and at the time of the Tribunal's decision, as required by clauses 309.211(2) and 309.221 of Schedule 2 to the *Migration Regulations 1994*. This involved determining if they were in a valid marriage, characterised by 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, as defined by section 5F of the Act. The Tribunal was required to consider all circumstances of the relationship, including financial and social aspects, the nature of their household, and their commitment to each other, as detailed in regulation 1.15A(3).

The Tribunal considered the evidence, including the parties' meeting, the review applicant's prior marriage and divorce, their engagement, marriage, and the subsequent birth of their child. It noted that the definition of "spouse" under section 5F of the Act necessitates a valid marriage and a genuine, continuing commitment to a shared life. The Tribunal acknowledged that each specific matter outlined in regulation 1.15A(3) must be addressed.

Given the findings, the Tribunal determined that the appropriate course was to remit the application for reconsideration. The Tribunal directed that the visa applicant met the criteria under clauses 309.211 and 309.221 of Schedule 2 to the Regulations, allowing the Minister to consider the remaining criteria for the Subclass 309 visa.