Tuan (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Partner), by an applicant from Vietnam sponsored by an Australian citizen. The delegate refused to grant the visa, finding that the applicant had not satisfied the requirements of cl 820.211(2) of the Migration Regulations 1994, as the evidence provided was insufficient to demonstrate that the applicant was the spouse of the sponsor as defined by s 5F of the Migration Act 1958. The applicant sought review of this decision.

The primary legal issue before the Tribunal was whether the applicant and sponsor were in a genuine and continuing married relationship that met the definition of "spouse" under s 5F of the Act at the time of the visa application. This required the Tribunal to consider the validity of their marriage, their mutual commitment to a shared life as a married couple to the exclusion of others, whether their relationship was genuine and continuing, and whether they lived together or not separately and apart on a permanent basis, having regard to all circumstances including financial, household, social aspects, and the nature of their commitment.

The Tribunal reasoned that while the parties were validly married, the delegate had not adequately considered all the evidence provided, particularly the further evidence submitted after the initial refusal. The Tribunal noted that the delegate's decision appeared to rely on information that was not current at the time of the decision. Applying the principles from *He v MIBP* [2017] FCAFC 206, the Tribunal considered that the matters outlined in reg 1.15A(3) of the Migration Regulations 1994, which detail the financial, household, social aspects, and nature of commitment in a relationship, needed to be comprehensively assessed in light of all the evidence.

Consequently, the Tribunal remitted the application for reconsideration by the Minister. The Tribunal directed that the applicant met the criterion in cl 820.211(2)(a) of Schedule 2 to the Regulations, indicating that the delegate should proceed to consider the remaining criteria for the Subclass 820 visa.