1409787 (Migration)

1409787 (Migration) [2016] AATA 3472 (29 February 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Tom Ngo
CASE NUMBER:  1409787
DIBP REFERENCE(S):  CLF2012/204604
MEMBER:Susan Trotter
DATE:29 February 2016
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:
·cl.820.211(2)(a) of Schedule 2 to the Regulations
·cl.820.221(1) of Schedule 2 to the Regulations
·r.2.03A

Statement made on 29 February 2016 at 12:17pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision of a delegate of the Minister for Immigration on 19 May 2014 to refuse to grant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant, Mr Tom Ngo, applied for a visa on 24 July 2012 on the basis of Mr Ngo’s relationship with his sponsor, Ms Thao Thanh Le.
At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in part 820 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.
The delegate refused to grant the visa on the basis that they were not satisfied there was sufficient evidence to demonstrate that Mr Ngo and Mr Le were in a genuine and continuing de facto relationship, and therefore concluded that Mr Ngo was not the de facto partner of Ms Le, as defined in the Act.
Mr Ngo appeared before the Tribunal on 23 February 2016 to give evidence and present arguments. The Tribunal also heard oral evidence from Ms Le, in person. The Tribunal was assisted by an interpreter in the Vietnamese and English languages.
Mr Ngo was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
ISSUES
Partner visas involve a two stage process. The visa applicant must hold a provisional visa in order to be granted a permanent visa. The grant of the provisional visa enables the visa applicant to travel to and remain in Australia on a temporary basis. The grant of a permanent visa may subsequently be considered, and generally depends on whether the relationship has continued for a period of at least two years.
The criteria for a Subclass 820 visa are set out in Part 820 of Schedule 2 to the Regulations. Clauses 820.211(2)(a) and 820.221(1) require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen and that the sponsor was not prohibited from being a sponsoring partner under cl.820.211(2B). In the present case Mr Ngo claims to have been the de facto partner of Ms Le at the time of the visa application, and to be the spouse of Ms Le at the time of this decision. Ms Le is an Australian citizen.
‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. 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 they must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d).
‘De facto partner’ is defined in s.5CB of the Act and provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2).
In forming an opinion as to the matters required in s.5CB(2) or s.5F(2)(a)-(d), regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship, the nature of the persons’ household and the nature of their commitment to each other, as set out in r.1.15A(3) (as regards a spouse relationship) and r.1.09A(3) (as regards a de facto relationship), both of which are extracted in the attachment to this decision.
Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in r.2.03A. These are: that the couple are both at least 18 years of age; and with limited exceptions, that the visa applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application, unless he or she can establish compelling and compassionate circumstances for the grant of the visa. The requirement that the relationship existed for 12 months prior to the application does not apply in certain circumstances where the sponsor is or was a humanitarian visa holder, or for applications made on or after 9 November 2009, where the de facto relationship has been registered under a relevant State or Territory law: r.2.03(4), (5).
It follows that the issues to be determined by the Tribunal are:
(a) Were the de facto criteria met at the time of the visa application? including:
(i)were the requirements for a de facto relationship met?; and
(ii)were the additional criteria for a de facto relationship met?, including:
A.    were each of Mr Ngo and Ms Le at least 18 years of age?; and
B.   had Mr Ngo and Ms Le been in a de facto relationship for at least 12 months prior to the date of application?; and, if not
C.   Were there compelling and compassionate circumstances for the grant of the visa or were there other circumstances existing such that the requirement to have been in a de facto relationship for at least 12 months prior to the date of application does not apply?
(b) Were the spouse criteria met at the time of decision?, including:
(i)Are Mr Ngo and Ms Le validly married?; and
(ii)Are the other requirements for a spousal relationship met?; and
(c) Was Ms Le prohibited from being a sponsoring partner?
CONSIDERATION OF CLAIMS AND EVIDENCE
Mr Ngo provided documentation to the Department and the Tribunal in relation to the relationship of Mr Ngo and Ms Le (the couple), including statutory declarations from friends and family, photographs of various social outings and various financial documentation.
The Tribunal accepts the evidence before it as summarised where relevant in these Reasons.
Background
Mr Ngo is currently 45 years of age. He was born in Vietnam and is a citizen of the United States of America. Ms Le is currently 44 years of age. She was born in Vietnam and was granted Australian Citizenship on 3 September 2008. The Tribunal accepts the consistent evidence of both Mr Ngo and Ms Le that they first met in August 2010, having been introduced at a restaurant by a mutual friend on the occasion of Mr Ngo’s birthday.
Issue 1 – Were the de facto criteria met at the time of the visa application?
Were the requirements for a de facto relationship met?
The Tribunal considered the matters to which it is required to have regard, pursuant to r.1.09A(3), in considering whether the requirements for a de facto relationship were met at the time of the visa application.
Financial aspects of the relationship
When questioned at length by the Tribunal as to when he and Ms Le commenced a de facto relationship, Mr Ngo replied “about one month prior to the visa application”. The Tribunal clarified with Mr Ngo as to his understanding of what a de facto relationship was. Mr Ngo responded that he understands that term to mean living together. He clarified that whilst he spent a lot of time with Ms Le in 2010, 2011 and the early part of 2012, it was not until one month prior to the visa application that they commenced living together all the time and they commenced sharing expenses and finances. He did use Ms Le’s address for various correspondence prior to this time, however that was as a matter of convenience. Ms Le, who was not present in the hearing during Mr Ngo’s evidence, told the Tribunal that she cannot remember exactly when she and Mr Ngo started sharing finances however she thinks it was from mid-2012 when they commenced living together. When queried, Mr Ngo and Ms Le told the Tribunal that if they had previously answered an earlier date as to when they commenced living together or had become de facto partners, it may have been because they did not understand the differences between Mr Ngo regularly staying overnight at Ms Le’s house as compared to moving in to live with her permanently.
The Tribunal notes that Mr Ngo provided a number of documents to the Department addressed to him at Ms Le’s address from October 2010. Whilst this might tend to suggest that Mr Ngo was residing at that address, with Ms Le, from October 2010, there is no documentary evidence of sharing of finances from that time. The financial documentation from that time provided by Mr Ngo is in his name only. Nonetheless, given the documentary evidence and Mr Ngo’s and Ms Le’s consistent evidence at hearing that they started sharing finances in mid-2012, the Tribunal is satisfied that the financial aspects of the couple’s relationship were consistent with that of a de facto relationship at the date of the visa application.
Nature of the household
Mr Ngo’s and Ms Le’s consistent evidence was that whilst they spent time together dating from 2010, including Mr Ngo regularly visiting and staying overnight with Ms Le, it was not until mid-2012 that they commenced living together. The Tribunal accepts that from this time the couple cohabitated and shared the usual household activities and chores. The Tribunal is satisfied that the nature of the couple’s household arrangements was consistent with that of a de facto relationship at the time of the visa application.
Social aspects of the relationship
The evidence before the Tribunal included numerous statutory declarations from family and friends and numerous photographs of the couple enjoying social activities with each other, family and friends. The Tribunal accepts that the couple were recognised by family and friends as in a relationship with each other from 2010 however, in the circumstances, little weight can be placed upon the nature of the evidence in the statutory declarations and the photographs as distinguishing between a time when Mr Ngo and Ms Le were dating as compared to when they had commenced living in a de facto relationship.
Mr Ngo told the Tribunal that culturally, including because of his previous failed marriage, he did not initially tell all of his family about the extent of his relationship with Ms Le. He did tell his cousin, with whom he was residing when he met Ms Le, but he did not really tell a lot of his family until after they started living together in mid-2012. He had, however, from since first commencing to date Ms Le in 2010, met her friends and family and she had met his friends. Ms Le’s evidence was consistent with Mr Ngo’s evidence in this regard.
The Tribunal is satisfied, based upon the oral evidence of the couple, that at the time of the visa application the couple represented themselves as and were recognised as being in a de facto relationship and the couple planned and undertook joint social activities together on that basis.
Nature of the persons’ commitment to each other
Mr Ngo told the Tribunal that initially he and Ms Le were dating and getting to know one another and it was not until he moved in with her, one month prior to the date of the visa application, that he made a definite commitment to a long term relationship with Ms Le. Ms Le’s evidence was consistent with this evidence.
Previous submissions and documents provided to the Department and the Tribunal suggest that Mr Ngo and Ms Le commenced a de facto relationship from September 2010. Whilst it was initially of some concern to the Tribunal that differing dates had previously been provided by Mr Ngo and Ms Le as to the commencement of their de facto relationship, the Tribunal accepts that there is a progression from dating (and staying over at a partner’s house) to being in a de facto relationship, with a definite point in time often not able to be specifically identified as to when a relationship changes. Further, the Tribunal accepts that, particularly given interpretation and cultural differences, differing evidence may understandably be given at different times, particularly in relation to the concept of a de facto relationship. Based upon the oral evidence of the couple to the Tribunal, which was clarified and explored at some length by the Tribunal, the Tribunal is satisfied that, as at the time of the visa application, the couple had, over the course of over 18 months, moved from dating to living together, providing each other with significant companionship and emotional support to a point where they were committed to a long-term relationship together at the time of the visa application.
Having taken all matters into account, the Tribunal is satisfied that at the time of the visa application, Mr Ngo and Ms Le had a mutual commitment to a shared life to the exclusion of all others, that the relationship between them was genuine and continuing and that they lived together. Further, the Tribunal is satisfied that the couple are not related by family as that term is defined in s.5CB(4) of the Act. The Tribunal is therefore satisfied that the requirements of s.5CB(2) were met.
As the requirements of s.5CB(2) were met, the Tribunal finds that Mr Ngo was the de facto partner of Ms Le at the time of the visa application.
Were the additional criteria for a de facto relationship met?
Were each of Mr Ngo and Ms Le at least 18 years of age?
The Tribunal has sighted identification documents for both Mr Ngo and Ms Le and is satisfied that they were both at least 18 years of age at all relevant times.
Had Mr Ngo and Ms Le been in a de facto relationship for at least 12 months prior to the date of the visa application?
Subject to the exceptions specified in r.2.03A(4) and (5) (which are not applicable in this case), the Tribunal must also be satisfied that Mr Ngo had been in the de facto relationship with Ms Le for at least the period of 12 months ending immediately before the date of the visa application, unless compelling and compassionate circumstances exist for the grant of the visa: r.2.03A(3). Based upon the evidence, whilst the Tribunal is satisfied that the parties were in a de facto relationship at the time of the visa application, it is not satisfied that the parties were in a de facto relationship for at least twelve months prior to that time, but rather only for one month prior to the date of the visa application.
Are there compelling and compassionate circumstances for the grant of the visa or were there other circumstances existing such that the requirement to have been in a de facto relationship for at least 12 months prior to the date of the visa application does not apply?
The Tribunal had regard to all the circumstances of the case in determining whether there are compelling or compassionate grounds. The Tribunal is satisfied that the parties have now been in a relationship for over five years and have two dependent Australian citizen children, aged approximately eighteen months and three weeks. Mr Ngo is the sole income earner of the family and Ms Le takes predominant responsibility for the care of the couple’s young children, including at the time of hearing, a three week old baby. Given these matters, the Tribunal is satisfied that compelling and compassionate circumstances exist for the grant of the visa in accordance with r.2.03A(3)(b).
For these reasons, the Tribunal is satisfied that the additional criteria for a de facto relationship, as prescribed in r.2.03A, are met.
Issue 2- Were the spouse criteria met at the time of decision?
Are the parties validly married?

33. If the couple are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship.

The Tribunal has sighted a certified copy of the couple’s marriage certificate and is satisfied that the couple were married on 2 May 2014 at Inala in Brisbane. The marriage was Mr Ngo’s second marriage and Ms Le’s second marriage. The Tribunal has sighted a certified copy of Mr Ngo’s Final Order of Divorce by the Superior Court of Vermont in the United States of America dated 5 April 2011 and a certified copy of Ms Le’s Certificate of Divorce from the Federal Magistrates Court of Australia dated 9 January 1999. The Tribunal is satisfied that there was no impediment to the couple’s marriage and is satisfied on the evidence that the couple were married to each other, under a marriage that is valid for the purposes of the Act, at the time of the decision. The Tribunal is therefore satisfied that s.5F(2)(a) was satisfied at the time of the decision.
Are the other requirements for a spousal relationship met?
The Tribunal considered the matters to which it is required to have regard, pursuant to r.1.15A, in considering whether the other requirements for a spousal relationship are met now. Those matters are similar to the matters previously considered by the Tribunal, as required pursuant to r.1.09A, in relation to a de facto relationship, which the Tribunal has found existed at the time of the visa application.
Financial aspects of the relationship
The Tribunal is satisfied that there is significant evidence of the financial aspects of the relationship at the time of decision, including recent joint bank account statements, joint utility accounts and the couple’s consistent oral evidence in relation to financial aspects of their relationship.
Nature of the household
The Tribunal is satisfied that there is significant evidence of the couple sharing a household at the time of decision including jointly addressed financial documentation, the couple’s evidence of their household and the couple’s joint responsibility for their two children aged approximately 18 months and three weeks, as was evidenced by the couple’s shared care of the children at the hearing.
Social aspects of the relationship
Based upon statutory declarations, photographs and the oral evidence of the couple, the Tribunal is satisfied that at the time of decision the couple represented themselves to their family and friends as being married, that their family and friends were of the view that the couple were in a genuine relationship and that the couple undertook social activities together, to the extent allowed given the responsibilities of caring for two young children.
Nature of the persons’ commitment to each other
The Tribunal is satisfied that there is significant evidence of the nature of the couple’s commitment to each other at the time of the decision, including a continuing relationship for over five years, a marriage of nearly two years duration and an obvious joint commitment to the two young children of the marriage.
Having taken all matters into account, including the r.1.15A matters, the Tribunal is satisfied that at the time of the decision, Mr Ngo and Ms Le had a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship between them was genuine and continuing and that they lived together. The Tribunal is therefore satisfied that s.5F(2)(b)-(d) were satisfied at the time of the decision.
As the requirements of s.5F(2)(a)-(d) have all been met, the Tribunal is satisfied that at the time of the decision, Mr Ngo and Ms Le were in a married relationship and therefore Mr Ngo is the spouse of Ms Le pursuant to s.5F of the Act.
Issue 3- Was Ms Le prohibited from being a sponsoring partner?

There is no evidence that Ms Le is prohibited under cl.820.211(2B) from being a sponsor.
Conclusion
As the requirements of s.5CB(2) were met at the time of the visa application and the requirements of s.5F(2)(a)-(d) are met now, the Tribunal is satisfied that at the time of the visa application Mr Ngo was the de facto partner of Ms Le and the spouse of Ms Le at the time of decision. Further, there is no evidence that Ms Le is prohibited from being a sponsor. The Tribunal therefore finds that the requirements of cl.820.211(2)(a) were met at the time of the visa application and continue to be met at the time of decision such that cl.820.221(1) is also met.
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 820 visa.
DECISION
The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:
· cl.820.211(2)(a) of Schedule 2 to the Regulations
· cl.820.221(1) of Schedule 2 to the Regulations
·     r.2.03A
Susan Trotter
Member
ATTACHMENT - Extract from Migration Regulations 1994
1.09A     De facto partner and de facto relationship
(1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.
Note 1           See regulation 2.03A for the prescribed criteria applicable to de facto partners.
Note 2           The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).
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).

[2016] AATA 3472

29 February 2016

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