1407447 (Migration)

[2016] AATA 3175

1407447 (Migration) [2016] AATA 3175 (3 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Van Toan Huynh

VISA APPLICANTS:  Mrs Thi Phuong Linh Nguyen
Master Quang Son Duong

CASE NUMBER:  1407447

DIBP REFERENCE(S):  OSF2013/027336

MEMBER:Jane Bishop

DATE:3 February 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:

·cl.309.211 of Schedule 2 to the Regulations

·cl.309.221 of Schedule 2 to the Regulations

The second named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.311 of Schedule 2 to the Regulations

Statement made on 03 February 2016 at 5:12pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 24 February 2014 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant (the visa applicant) applied for the visa on 16 September 2013 on the basis of her relationship with her sponsor, the review applicant. At that time, Class UF contained two subclasses: Subclass 309 (Spouse (Provisional) and 310 (Interdependency (Provisional)). The visa applicant has made claims only for the Subclass 309 visa and does not claim to be in an interdependent relationship as required by Subclass 310.

3. The criteria for the grant of a Subclass 309 visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Relevantly to this matter the primary criteria include cl.309.211 and cl.309.221.

4. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 and cl.309.221 because the delegate was not satisfied that the visa applicant was the spouse of the review applicant.

5. The review applicant was represented in relation to the review by his registered migration agent.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the visa applicant is the spouse or de facto partner of the review applicant.

Background

1. The second named visa applicant is the first named visa applicant’s son. He was born on 21 November 2005 (as evidenced by a translated copy of his birth certificate).

2. The visa applicant and review applicant first spoke to each other over the telephone in August 2012. The review applicant was a friend of the visa applicant’s brother. The sponsor went to Vietnam on 2 February 2013 and returned to Australia on 10 March 2013. During this visit the review applicant and visa applicant decided to get married.

10.  On 23 June 2013 the review applicant returned to Vietnam and married the visa applicant. The review applicant returned to Australia on 14 July 2013 and the parties kept in contact via the telephone and video calls. The review applicant returned to Vietnam on 17 November 2014 and returned to Australia on 19 January 2015. The visa applicant discovered she was pregnant during this visit and – once the review applicant returned to Australia - the parties kept in contact via the telephone and video calls. The review applicant returned to Vietnam on 24 April 2015 and returned to Australia on 10 June 2015.

11.  On 5 September 2015 the visa applicant gave birth to a child.

Whether the parties are in a ‘spouse’ relationship

12.  Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision the visa applicant is the spouse of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen.  In the present case the visa applicant claims to be the spouse of the review applicant who has been a permanent Australian resident since 2006 (as evidenced by the visa and date stamp of entry in Australia contained in his passport)

13.  ‘Spouse’ is defined in r.1.15A of the Regulations and provides that a person is the spouse of another where the two persons are either in a married or de facto relationship. Persons are in a de facto relationship if they are not validly married to each other. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: r.1.15A(1A). In forming an opinion as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.

Are the parties validly married?

14.  If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. On the Department’s file is a translated marriage certificate stating that the review applicant and visa applicant were married on 24 June 2013. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by r.1.15A(1A)(a).

Are the other requirements for a spousal relationship met?

The financial aspects of the relationship

15.  The evidence before the Tribunal was that, at the time of application, the review applicant and the visa applicant had no joint assets or legal obligations. The review applicant works full time and the visa applicant does not work. The review applicant provided seven money transfers to the visa applicant from November 2014 and his recent superannuation statement indicated that the visa applicant and the review applicant’s child were 50% beneficiaries. Prior to the birth of the review applicant’s child the review applicant’s brother was nominated. The review applicant provided receipts for gifts to the visa applicant and his flights to and from Vietnam.

16.  The Tribunal is of the view that at the time of decision there is evidence of some intermingling of the visa applicant and review applicant’s finances. This intermingling is consistent with the visa applicant and review applicant’s limited spare finances. However given the review applicant and visa applicant reside in different countries the Tribunal has put limited weight on this aspect of the relationship.

The nature of the household

17.  The evidence before the Tribunal is that, since the review applicant and visa applicant’s wedding, the couple have lived in the visa applicant’s home - when the review applicant is in Vietnam. The review applicant provided his temporary registration certificate indicating that he lived at the visa applicant’s mother’s home from 11 December 2014 to 19 January 2015 and a bus rental contract indicating that the review applicant and visa applicant went on vacation with some of the visa applicant’s relatives. In submissions dated 14 December 2015 the review applicant’s representative states that when the review applicant is in Vietnam he lives with the visa applicant sharing a room. The visa applicant undertakes the traditional household chores and the review applicant undertakes chores that are more physically demanding. Given the review applicant and visa applicant reside in different countries the Tribunal has put limited weight on this aspect of the relationship.

The social aspects of the relationship

18.  The numerous photographs, witness statements, statutory declarations and letters attest that, since the wedding in June 2013, the review applicant and visa applicant have represented themselves as a married couple. The photographs appear to depict the visa applicant and review applicant at various locations on various occasions. In many of the photographs the visa applicant and review applicant are with numerous other people including the visa applicant’s son. Likewise the wedding photographs show a somewhat elaborate ceremony that was attended by a large number of people. Based on the evidence before it the Tribunal finds that, since the visa applicant and review applicant’s wedding, they have considered themselves to be, and have been perceived by others, as a married couple.

The nature of the persons' commitment to each other

19.  The review applicant and visa applicant have been known to one another since August 2012 and married in June 2013. The review applicant provided hundreds of pages of internet conversations between him and the visa applicant from 2014 and 2015. Those pages were in Vietnamese but showed that the couple communicated with each other on a daily basis. Likewise the review applicant provided telephone accounts from 2014 showing frequent calls to the visa applicant’s telephone and travel itineraries showing the review applicant’s travel to Vietnam. In September 2015 the visa applicant gave birth to the review applicant’s daughter (as evidenced by a translated copy of the birth certificate).

20.  The Tribunal is of the view that both parties draw a significant degree of companionship and emotional support from one another and consider the relationship to be long term. The Tribunal has found that the visa applicant is reliant upon the review applicant for some financial assistance and that, since their marriage, the parties have represented themselves, and been perceived as, a married couple. In September 2015 the visa applicant gave birth to the review applicant’s daughter. On the basis of the evidence before it, the Tribunal is satisfied that at the time of application and at the time of decision the visa applicant and review applicant had a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing. They therefore meet the requirements of s.5F(2)(b) and s.5F(2)(c).

21.  The evidence before the Tribunal is that, when the review applicant and visa applicant reside in the same country, they live together. That being so the Tribunal is satisfied that the review applicant and the visa applicant live together or not separately and apart on a permanent basis. Accordingly, they meet the requirements of s.5F(2)(d).

22.  Given these findings the Tribunal is satisfied that at the time the visa application was made and at the time of decision the parties were, and are, in a spousal relationship.

23.  Therefore the visa applicant meets the requirements of cl.309.211 and cl.309.221.

Member of Family Unit – Secondary visa applicant

24.  The primary criteria must be satisfied by at least one applicant. Other members of the family unit who are applicants for the visa need satisfy only the secondary criteria which require that they be members of the family unit of a person who satisfies the primary criteria: relevantly cl.309.311 and 309.321. Member of the family unit is defined in r.1.12 and includes spouse or de facto partner, dependent child and relatives of the family head or spouse of the family head who does not have a spouse or de facto partner and is usually resident in the family head’s household and is dependent on the family head.

25.  As the Tribunal accepts that the first named visa applicant satisfies the primary criteria, the secondary applicant meets cl.309.311 because they are a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 309.21.

26.  Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.

DECISION

27.  The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

· cl.309.211 of Schedule 2 to the Regulations

· cl.309.221 of Schedule 2 to the Regulations

The second named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

· cl.309.311 of Schedule 2 to the Regulations

Jane Bishop
Member

ATTACHMENT  - Extract from Migration Regulations 1994

1.15ASpouse

…

1. In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for:

   (ad)a Partner (Migrant) (Class BC) visa; or

   (ae)a Partner (Provisional) (Class UF) visa; or

   (af)a Partner (Residence) (Class BS) visa; or

   (ag)a Partner (Temporary) (Class UK) visa;

   the Minister must have regard to all of the circumstances of the relationship, including, in particular:

   (a)the financial aspects of the relationship, including:

   (i)       any joint ownership of real estate or other major assets; and

   (ii)      any joint liabilities; and

   (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

   (iv)    whether one party to the relationship owes any legal obligation in respect of the other; and

   (v)     the basis of any sharing of day‑to‑day household expenses;

   (b)the nature of the household, including:

   (i)       any joint responsibility for care and support of children, if any; and

   (ii)      the parties’ living arrangements; and

   (iii)     any sharing of responsibility for housework;

   (c)the social aspects of the relationship, including:

   (i)       whether the persons represent themselves to other people as being married or in a de facto relationship with each other;

   (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

   (iii)     any basis on which the persons plan and undertake joint social activities;

   (d)the nature of the persons’ commitment to each other, including:

   (i)       the duration of the relationship; and

   (ii)      the length of time during which the persons have lived together; and

   (iii)     the degree of companionship and emotional support that the persons draw from each other; and

   (iv)    whether the persons see the relationship as a long‑term one.

2. In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for a visa of a class other than a class specified in paragraph (3) (ad), (ae), (af) or (ag), the Minister may have regard to any of the factors set out in subregulation (3).

3. If 2 persons have been living together at the same address for 6 months or longer, that fact is to be taken to be strong evidence that the relationship is genuine and continuing, but a relationship of shorter duration is not to be taken not to be genuine and continuing only for that reason.

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