VO (Migration)

This matter concerned a Contributory Parent (Migrant) (Class CA) Subclass 143 visa application made by Mrs Mai. The primary issue before the Tribunal was whether Mrs Mai could satisfy the ‘Balance of Family Test’. This test requires the visa applicant to demonstrate a genuine and continuing spousal relationship with their claimed partner, who is an Australian resident. In this case, the claimed partner was Mr Huynh, who had previously been granted a contributory parent visa. The sponsor for Mrs Mai’s application was Miss Huynh, Mr Huynh’s daughter from a previous marriage, who was under 18 at the time of application, with her mother, Ms Vo, acting on her behalf.

The Tribunal was required to determine if Mrs Mai and Mr Huynh were in a genuine spousal relationship as defined by section 5F of the Migration Act 1958 (Cth) and regulation 1.15A of the Migration Regulations 1994. This definition requires, among other things, a mutual commitment to a shared life as a married couple to the exclusion of all others, and that the relationship be genuine and continuing. The Tribunal considered evidence relating to the financial and social aspects of the relationship, the nature of the household, and the parties' commitment to each other.

The Tribunal found that while Mrs Mai and Mr Huynh were validly married and had lived together and socialised at times, there were significant inconsistencies in the evidence they provided regarding their relationship. Specifically, they gave conflicting accounts about periods of separation and reconciliation. Furthermore, they demonstrated a lack of knowledge about each other's day-to-day circumstances, financial situations, and household responsibilities. These credibility concerns led the Tribunal to conclude that it was not satisfied that Mrs Mai and Mr Huynh were in a genuine spousal relationship at the time of the visa application or at the time of the decision.

Consequently, the Tribunal affirmed the decision not to grant Mrs Mai a Contributory Parent (Migrant) (Class CA) Subclass 143 visa, as she had failed to satisfy the criteria for the visa, including the Balance of Family Test.