Van (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309, made by Mr Phu Qui Do, a Vietnamese national, who claimed to be the de facto partner of Mr Quang Vinh Van, an Australian citizen. The Tribunal was required to determine whether the parties were in a genuine and continuing de facto relationship at the time of the visa application and at the time of the decision, as defined by section 5CB of the Migration Act 1958 (Cth) and Regulation 1.09A of the Migration Regulations 1994 (Cth).

The legal issues before the Tribunal were whether the parties met the criteria for a de facto relationship under section 5CB(2) of the Act, which requires a mutual commitment to a shared life to the exclusion of all others, that the relationship is genuine and continuing, that the couple live together or do not live separately and apart on a permanent basis, and that they are not related by family. In assessing these criteria, the Tribunal was required to consider all circumstances of the relationship, including financial, social, household, and commitment aspects, as outlined in Regulation 1.09A(3).

The Tribunal reasoned that to determine if a de facto relationship existed, it must consider all the circumstances, including evidence of financial and social aspects, the nature of the household, and the commitment to each other. This involves examining factors such as shared day-to-day expenses, joint social activities, representation to others as being in a de facto relationship, companionship, and mutual commitment to a shared life. While the delegate's decision record indicated the applicants were not married and the assessment was based on de facto status, the Tribunal found that the matter should be remitted for reconsideration. The Tribunal concluded that the visa applicant met specific criteria related to being a spouse or de facto partner, and therefore remitted the application for further consideration of the remaining criteria for a subclass 309 visa.