Vuong (Migration)

The case of *Vuong (Migration)* concerned an applicant seeking a Partner (Temporary) (Class UK) visa, Subclass 820 (Partner). The primary dispute revolved around whether the applicant met the definition of a "spouse" under section 5F of the Migration Act 1958 (Cth) and whether she satisfied the Schedule 3 criteria, particularly given that her application was made more than 28 days after her last substantive visa ceased.

The court was required to determine if the parties were in a genuine and continuing spousal relationship, considering the financial, household, and social aspects, as well as the nature of their commitment to each other. Additionally, the court had to assess whether there were compelling reasons for the applicant not meeting the criteria for Schedule 3, especially in light of the sponsor's role in the life of the applicant's child, who had long-term health conditions, and the potential additional burden if the applicant were required to apply offshore.

The Tribunal found that the parties were validly married and that the relationship exhibited sufficient financial, household, social aspects, and commitment to satisfy the definition of a spousal relationship under section 5F of the Act. However, the Tribunal noted that the applicant had remained in Australia as an unlawful non-citizen for approximately three years after her visitor visa ceased, meaning she did not meet the standard timeframe for applying for a Partner visa under Schedule 3. Despite this, the Tribunal considered the circumstances, including the sponsor's role in the child's life and the potential hardship of offshore application, and concluded that there were compelling reasons to remit the matter.

Consequently, the Tribunal remitted the application for the Partner (Temporary) (Class UK) visa, with a direction that the applicant met specific criteria for a Subclass 820 (Partner) visa, including those related to the validity of the application and the assessment of the spousal relationship.