Truong (Migration)

This matter concerned an appeal by an applicant for a Partner (Temporary) (Class UK) visa, subclass 820, against a decision made by the Department of Home Affairs. The applicant and the sponsor, an Australian citizen, met through a mutual friend and their relationship developed over time, leading to their marriage on 19 March 2016. The applicant subsequently lodged a Partner Visa Application on 8 April 2016. The couple had two children together, born in 2018 and 2019, and the sponsor also had two children from a previous relationship.

The primary legal issue before the Tribunal was whether the applicant was the spouse of the sponsor as defined by section 5F of the Migration Act 1958 (Cth). This definition requires that the parties be married under a valid marriage, have a mutual commitment to a shared life as a married couple to the exclusion of all others, that the relationship be genuine and continuing, and that they live together or not permanently apart. The Tribunal was required to consider all circumstances of the relationship, including financial, social, household, and commitment aspects, as outlined in regulation 1.15A(3) of the Migration Regulations 1994.

The Tribunal found that the parties had provided a marriage certificate registered under the Marriage Act 1961, indicating a valid marriage. However, the Tribunal concluded that it had not adequately considered all the relevant criteria under regulation 1.15A(3) in relation to the genuineness and continuing nature of the spousal relationship. Consequently, the Tribunal remitted the application to the Minister for reconsideration, directing that the applicant met the criteria under cl.820.211(2) and cl.820.221(1)(a) of Schedule 2 to the Regulations.