1408948 (Migration)

[2015] AATA 3126

1408948 (Migration) [2015] AATA 3126 (1 July 2015)

DECISION RECORD

DIVISION:Migration and Refugee Division

REVIEW APPLICANT:  Mr Gia Duc Pham (10/9/1953)

VISA APPLICANTS:  Ms Thi Hao Ho (1/4/1959)
Master Cong Danh Dang (23/8/1991)

MRT CASE NUMBER:  1408948

DIBP REFERENCE(S):  OSF2013/027642

DATE:Wednesday July 1, 2015

MEMBER:McGowan

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for a Partner (Provisional) (Class UF) visa for reconsideration (including the second named visa applicant), 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; and

·cl.309.221 of Schedule 2 to the Regulations.

Statement made on 01 July 2015 at 2:56pm

STATEMENT OF DECISION AND REASONS

309 VISA REFUSAL

1. The first named visa applicant (‘visa applicant’) applied for the visa on July 9, 2013, on the basis of her relationship with her sponsor, the review applicant. On March 21, 2014 the application was refused as the delegate found the parties were not in a spousal relationship.
   
   

   REVIEW & HEARING

2. The Tribunal received a valid application for appeal from the review applicant on May 20, 2014. The Tribunal found the delegate’s decision is an MRT-reviewable decision. The Tribunal held a hearing on June 1, 2015. The review applicant was present, as was his son and his wife (and their child). The visa applicant was also present. Two friends of the visa applicant were also present and gave evidence. An interpreter in the English and Vietnamese languages was provided. The review applicant was represented by his migration agent, Mr Duc Hung Bui, at hearing.
   
   

   ISSUE

3. The issue in the present case is whether the parties are in a spousal relationship.
   
   

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The Tribunal has taken into consideration all the evidence in the Departmental case file, and the Tribunal’s case file, and all the oral evidence given at the Tribunal’s hearing, and other relevant material obtained by it.

5. What is the background of this case based on all the evidence before the Tribunal?
   The parties met each other in September 2011 on Vietnam’s National Day. They began a friendship which developed after the death of the visa applicant’s then husband (on November 25, 2011). Since that time the visa applicant and sponsor have travelled back and forth between Australia and Vietnam as partners on at least four separate occasions. They married one another in Australia on November 3, 2012.

6. Is the applicant the spouse or de facto of an eligible citizen? The Tribunal is satisfied the review applicant is at the time of application and time of decision an Australian citizen by birth as evidenced by the information contained in the Departmental file, their decision, and other travel documentation contained therein.

7. Are the parties in a spouse or de facto relationship? Are the validly married? The parties claim they are the spouse of the other. ‘Spouse’ is defined in s.5F of the Act: s.5F(2)(a)-(d). If they are validly married, they may meet the requirements of a spousal relationship. The Tribunal is satisfied that the parties were married to each other on November 3, 2012 in Wiley Park, New South Wales, in a marriage that is valid for the purposes of the Act as required by s.5F(2)(a) as evidenced by the parties oral evidence and a certified copy of their marriage certificate (refer: T1, f.61).

8. Are the other requirements for a spousal relationship met? The Tribunal must consider all the circumstances of the relationship (including the matters specified in r.1.15A) in determining whether the parties are in a “married relationship” as defined by s.5F(2).

9. The Tribunal has had regard to the parties’ financial relationship; the nature of their household; the social aspects of the relationship; and the nature of their commitment to each other. On these aspects the Tribunal has considered all the evidence before it and is satisfied the facts of this case are as follows: Both parties are working and reasonably self-reliant financially, although the review applicant is supported by the visa applicant who pays for his travel back and forth from Australia to Vietnam. The parties anticipate combining their financial affairs when they cohabitate permanently. They have no joint assets to speak of. They have no children together, but have children and grandchildren from their previous relationships. They anticipate establishing a permanent household in Australia (not at the current Wiley Park address). As the review applicant’s son was at the hearing and gave evidence, it is clear the parties’ respective families and acquaintances accept that the parties represent themselves as being married to each other. This is also evident from the numerous photographs and supportive statements the parties provided the Tribunal which were in addition to those given to the Department at the time of application. It is clear from the review applicant’s sons’ articulate oral evidence that he believes his father is married to his wife and that their relationship is genuine. They have been married now for almost three years. The visa applicant has been to Australia four times since she has been the partner of the review applicant. Likewise, he has spent a considerable amount of time in Vietnam, staying with his wife. The Tribunal also notes the important oral evidence of the visa applicant’s friends at hearing, which spoke to the cohabitation of the parties while in Australia. They first lived together in Vietnam after they shared their feelings for one another (and consistent with their oral evidence at hearing particularly from the visa applicant), in February 2012.

10. In view of all the above, the Tribunal is satisfied that there is broad recognition of the parties’ relationship. The Tribunal is satisfied by the parties’ oral evidence at hearing that they demonstrate that they are a couple in a genuine and ongoing spousal relationship. In respect of whether there is a mutual commitment to a shared life as husband and wife to the exclusion of all others, the Tribunal accepts the parties’ oral evidence that they are.

    Other considerations

11. The Tribunal placed a high premium on the oral evidence of the visa applicant. Her evidence was spontaneous, informative and, as such, both credible and reliable. Her evidence was particularly valuable in regards to the nature of the parties’ relationship.

    FINDINGS

12. The Tribunal is satisfied that the parties’ marriage is valid for the purposes of the Act as required by s.5F(2)(a).

13. The Tribunal is satisfied that at the time of application and at the time of decision the review applicant and the visa 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) for a married relationship.

14. The Tribunal is also satisfied that at the time of application and at the time of decision the parties meet the requirement of s.5F(2)(d) for a married relationship, in that they do not live separately and apart on a permanent basis.

15. For these reasons, the Tribunal is satisfied that at the time the visa application was made the parties were in a ‘married relationship’ within the meaning of s.5F(2) of the Act. The Tribunal further finds that at the time of decision, they continue to be in a married relationship.

16. The Tribunal therefore finds that at the time of the visa application the visa applicant was the spouse, within the meaning of s.5F, of the review applicant, who is an Australian citizen, and meets the requirements of cl.309.211(2) of Schedule 2 to the Regulations. Therefore, the visa applicant meets cl.309.211.

17. Further, the Tribunal finds that at the time of the Tribunal’s decision the visa applicant continues to be the review applicant’s spouse, and so continues to meet cl.309.211, and therefore meets the requirements of cl.309.221 of Schedule 2 to the Regulations.

18. 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

19. The Tribunal remits the applications for a Partner (Provisional) (Class UF) visa for reconsideration (including the second named visa applicant), 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; and

    ·cl.309.221 of Schedule 2 to the Regulations.

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

    (2)If the Minister is considering an application for:

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

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

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

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

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (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 person in the relationship owes any legal obligation in respect of the other; and

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

    (b)the nature of the household, including:

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

    (ii)the living arrangements of the persons; and

    (iii)any sharing of the responsibility for housework; and

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

    (i)whether the persons represent themselves to other people as being married to each other; and

    (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; and

    (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.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).