Tribunal: Member R Matheson
Primary Government decision
A delegate of the Minister of Immigration (the delegate) refused to grant the visa applicants provisional Partner visas.
AAT decision
The Tribunal remitted the applications for provisional Partner visas to the Department of Home Affairs with a direction that the visa applicants met the relevant criteria.
Details
The primary visa applicant (the applicant) is a female Vietnamese national who applied for a provisional partner visa based on her spousal relationship with the sponsor. The sponsor is an Australian citizen.
The delegate refused to grant the provisional partner visa as they were unsatisfied that the applicant was the sponsor’s spouse.
As the delegate refused to grant the primary applicant’s visa, her dependant child’s (secondary visa applicant) visa was also refused.
Issue
The Tribunal had to decide if the applicant qualified as the spouse of the sponsor, as defined in s5F of the Migration Act 1958 (the Migration Act).
Relevant law
Section 5F(2)(a) of the Migration Act defines the term ‘spouse’ for the purposes of migration applications. That provision provides that a person is considered the spouse of another person if they are two persons in a married relationship. They must have a mutual commitment to a shared life as a married couple, live together or do not live separately permanently, and the relationship between them is genuine and continuing.
Regulation 1.15A of the Migration Regulations 1994 lists various matters that a decision-maker must consider to determine whether the visa applicant is the spouse of the sponsor under the Migration Act. The matters are the financial aspects of the relationship, the nature of the household, the social aspect of the relationship, the nature of the persons’ commitment to each other, and any other relevant factors.
Schedule 2, clauses 309.211, 309.212, 309.213, 309.221, and 309.311 of the Migration Regulations provide the criteria to be satisfied for granting a Partner (Provisional) visa (Class UF).
Summary of reasons for decision
The Tribunal considered if the applicant and sponsor met the criteria for a spousal relationship under the criteria listed in the Migration Act. This includes:
- Financial aspects: The Tribunal found that the sponsor provided a reasonable amount of financial support to the applicant and her daughter. The sponsor and applicant also had sound knowledge of the other’s previous employment, income and living arrangements.
- Nature of the household: The applicant and sponsor provided a joint lease as evidence that they lived together whenever the sponsor visited Vietnam. They also provided evidence of their living arrangements, household duties and support of the applicant’s daughter. The Tribunal was satisfied that they had established a joint household.
- Social aspects: The Tribunal assessed the social aspects of the relationship, including how the couple represent themselves to others, opinions of friends and acquaintances, and joint social activities. It concluded that the parties represent themselves as married, and family and friends recognise and support their relationship.
- Commitment: The Tribunal evaluated the parties' commitment to each other, including the duration of the relationship, emotional support, and long-term plans. It found that the parties view their relationship as stable, genuine, and long-term, and they are committed to providing care and support to the applicant's daughter.
Based on these findings, the Tribunal was satisfied that the requirements for a Partner (Provisional) (Class UF) were met at the time of the visa application and at the time of the decision. The Tribunal was also satisfied that the secondary applicant was the applicant’s dependent child that she wholly supported. Therefore, the Tribunal remitted the applications for reconsideration by the Minister.
Full decision
Read the full decision on AustLII.
Glossary
Remit: Remitting the decision means we send the matter back to the department to make a new decision in accordance with our instructions or recommendations.
Disclaimer
Every case before the AAT is determined on its individual facts. These summaries may not include all information considered by the AAT and do not constitute legal advice. You should read the full decision to ensure you understand the basis of our decision.