1416768 (Migration)

[2016] AATA 3329

1416768 (Migration) [2016] AATA 3329 (23 February 2016)

DECISION RECORD

DIVISION:  Migration & Refugee Division

REVIEW APPLICANT:  Mrs Thi Thu Huong Nguyen

VISA APPLICANT:  Mr Tan Dat Le

CASE NUMBER:  1416768

DIBP REFERENCE(S):  OSF2014/026674

MEMBER:Ian Garnham

DATE:23 February 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the 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

·r.1.15A

Statement made on 23 February 2016 at 11:46am

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 4 September 2014 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 12 May 2014 on the basis of his relationship with his sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 and 309.221 because the applicant did not meet the definition of a spouse as set out in the legislation.

4. The review applicant was lawfully invited to attend a hearing and did not respond or attend on 4 September 2015.  The case was dismissed by the Tribunal on that day.  The case was reinstated on 18 September 2015.

5. The review applicant appeared before the Tribunal on 21 October 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and three witnesses; Helen Tran, Hien Thi Le and Martin Nguyen.

6. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The relationship between the parties is entwined with the migration history of the visa applicant.  It is summarised by the parties and Departmental movement records as follows:

   ·     29 September 2001 - visa applicant travelled to Australia on a student visa

   ·     11 March 2005 - visa expired and the visa applicant became unlawful

   ·     January 2008 - parties met at a coffee shop

   ·     December 2009 – parties began living together at the home of the review applicant

   ·     7 February 2010 – parties married in Australia

   ·     19 March 2010 – parties applied for a Partner (Temporary) (Class UK) visa

   ·     29 November 2010 – visa application refused

   ·     16 December 2010 – application for review of this decision lodged with Migration Review Tribunal (MRT)

   ·     22 February 2011 – 15 March 2011 – review applicant travelled to Vietnam and claims to have spent 2 days visiting family of visa applicant

   ·     2 November 2012 - MRT affirmed decision to refuse application[1]

   ·     21 April 2014 – visa applicant left Australia and returned to Vietnam

   ·     12 May 2014 - this application lodged in Vietnam

   ·     7 July 2014 – 30 July 2014 – review applicant travelled to Vietnam and a marriage ceremony occurred for the parties on 13 July 2014

   [1] 1011443 MRT – 1 November 2012

   Whether the parties are in a spouse or de facto relationship

9. Clauses 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 or de facto partner 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 is an Australian permanent resident since 23 February 2006.

10. ‘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 the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). 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?

11. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship.  A certificate of marriage for the parties dated 7 February 2010 has been submitted.  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 s.5F(2)(a).  Therefore, the relationship of the parties must be assessed under the spousal requirements.

    Are the other requirements for a spousal relationship met?

    Relationship background

12. In this case, as foreshadowed above, the migration history of the visa applicant is entwined with the development of the parties’ relationship.  The migration background of the review applicant/sponsor is also relevant to the assessment and consideration of this relationship.

13. The review applicant/sponsor was born in Vietnam.  She was sponsored to come to Australia by her ex-husband in 2005 and she became a permanent resident in 2006. She divorced later in that year.  This information is confirmed by the Department’s movement record of the review applicant. 

14. According to all of the information on file the parties met in early 2008, they began living together in late 2009 and married in Australia on 7 February 2010.  For all of this time the visa applicant was living unlawfully in Australia.  He has explained his circumstances during this period in some detail in his declaration dated 17 April 2014 (the declaration).  They may be relevantly summarised as follows:

    After arriving in September 2001 on a student visa the visa applicant concedes he squandered the money allocated to fund his study costs, and he did not complete his studies.  Consequently, he claims he was too scared and ashamed to return to Vietnam when his visa expired on 11 March 2005.  He claims his parents had borrowed the money to allow him to become qualified in Australia.

    After meeting the review applicant in January 2008, followed by a period of dating, they began living together in December 2009.  After marrying in 2010, they approached a migration agent and were advised to lodge an onshore partner application and seek waiver of the schedule 3 criteria to resolve the visa applicant’s immigration status. 

    The visa applicant was granted a bridging visa on 27 October 2010 and his unlawful status ended.  From this time the visa applicant was granted a series of bridging visas until he left the country on 21 April 2014.

15. In the declaration the visa applicant also says that acting upon the advice of the same migration agent they lodged the onshore partner application and then appealed the delegate’s decision to refuse the visa to this Tribunal (differently constituted).  On 1 November 2012 the previous Tribunal found that, in this case, there were not compelling reasons to not apply the Schedule 3 criteria (requiring the visa applicant to go offshore to lodge a partner visa application).    

16. However, after considering the evidence,  the Tribunal also found that the relationship between the parties, was genuine and continuing at the time of application:

    In conclusion, the Tribunal is satisfied that at the time of application the applicant was the spouse or de facto partner of a person who is an Australian permanent resident that the applicant was sponsored by that person and the sponsor was not prohibited from being a sponsoring partner under cl.820.211(sB).  Accordingly, the Tribunal finds that the applicant meets cl.820.211(2)(a) and (c).[2]

    [2] Ibid at paragraph 54

17. I have also considered the documentary evidence contained in the files and further evidence provided by the parties at the hearing. Having done so, I am also satisfied that the above finding is correct and that it would serve no worthwhile purpose to re-assess this earlier period of their relationship again.

18. Upon the advice of a different migration agent the visa applicant lodged this offshore application, on 12 May 2014.  This is the decision currently before the Tribunal for review.

    Financial aspects of the relationship

19. The review applicant has consistently given evidence that since her divorce in 2006 she has lived at the home of Ms Tran and that the visa applicant began living with her there in December 2009.  Ms Tran’s evidence was also consistent with that of the parties.  She said that the visa applicant had lived in her house for a period of about 5 years before he had to return to Vietnam.  The parties both stated, as they had at the previous hearing that during this period, the review applicant would try to give the visa applicant $150/week to spend because he did not have work rights.

20. The review applicant also said that she tries to contribute towards the payment of the utility bills, all of which have always been in Ms Tran’s name.  For many years, and including when both the parties were living there together the review applicant has given Ms Tran $200/fortnight for rent and usually a further $200/month is required for payment of half of the utility bills.

21. As set out at paragraph 14 the visa applicant has always claimed the reason that he remained unlawful for such a long period is that he was ashamed of squandering the money that had been borrowed by his family on his behalf.  He was scared as to what repercussions would arise as a result of the failure to repay this money when he returned to Vietnam.  In the declaration the visa applicant describes how the repayment of this debt has been able to occur as follows:

    …my wife and I together with my family have come to an arrangement with the creditors in Viet Nam to pay off my debts.  Through all of this, Huong has been the driving force, she is forever supportive both financially and emotionally.

22. As noted by the delegate, aside from the review applicant naming the visa applicant as the beneficiary of her superannuation and operating a joint bank account in the period July 2010 – July 2012 there is no further evidence that has been provided showing a pooling of financial resources.  This is because during the period of the relationship while the visa applicant was onshore (2010 - 2014) the visa applicant had no income and carried debts in Vietnam which he now claims he is continuing to repay.  

23. The review applicant said that because the visa applicant has been working since he returned to Vietnam, no money has changed hands between them since he returned there in April 2014.  Indeed, when they lived together, aside from the money she used to regularly give to the visa applicant very little money changed hands between them and even though they had opened a joint bank account it shows little activity.  At the hearing the review applicant said that the joint bank account has now been closed

24. For over two years the review applicant has worked at a pet food factory earning $650/week before tax.  In Vietnam, the visa applicant currently works as a driver for a hotel and earns approximately $300/week (AUD).   

25. Over the following periods the review applicant travelled to Vietnam:

    ·22 February 2011 – 15 March 2011

    ·7 July 2014 – 30 July 2014

    During the first trip, when the review applicant travelled by herself to Vietnam she met all of her own expenses and claims to have spent a day meeting the visa applicant’s family. 

    The second of these trips occurred when the visa applicant had returned to Vietnam and involved the marriage of the parties.  They both stated that the visa applicant’s father gave her $2,000 towards the air-fare.  The visa applicant organised a payment of approximately $2,000 for the wedding costs and the review applicant claims to have funded their brief honeymoon.  In addition, the parties claim the visa applicant purchased their wedding rings; otherwise the parties have not given each other presents throughout the relationship.  The review applicant said that the wedding costs were discussed before the visa applicant left Australia and that it was always important that they maintained some financial independence due to financial issues that arose during her first marriage.  

26. Overall, given the broader circumstances of the parties before the relationship began and throughout its course, I consider it perfectly natural for the parties to have, to a large degree, maintained individual finances.  They both have limited resources and income streams available and there is understandably little evidence of them pooling their financial resources.  However there is significant evidence of them providing financial support to one another in support of their stated common aim; to begin a family and save to purchase a house together in Springvale.

    Nature of the household

27. Ms Tran gave evidence that over the period that the visa applicant lived in the house he shared the bedroom of the review applicant.  Both parties gave evidence stating that the review applicant was working long hours as a farm labourer at that time and that she was the major wage earner.  The visa applicant said that because he did not have a tax file number he found it difficult to get work and would often spend his days at home.  Ms Tran who is in receipt of a pension and does not work, corroborated the visa applicant’s evidence with respect to how the visa applicant spent his time in this period.  Both parties gave evidence that they had little money and would shop and window shop on the visa applicant’s one day off as a form of recreation.

28. The parties claim to have discussed the prospect of having children and both state they are keen to do so.  When they were living together in Australia they could not do this because the review applicant was the sole wage earner. 

29. Ms Tran gave evidence that when the couple lived together in her house they did so as married partners.  They shared the same room and always seemed happy; they had no arguments and that the visa applicant respected the review applicant.  She said they always went out together on the review applicant’s day off.  She also said that during the day when the review applicant was working the visa applicant would often stay home and help with the housework.

30. The parties also provided photographic evidence demonstrating their marriage and co-habitation during the review applicant’s three week trip to Vietnam for their marriage in 2014.  The review applicant said that they travelled between both of their families’ villages (about a 1 hour trip on her husband’s motor bike) a number of times to spend time with both families.     

    Social aspects of the relationship

31. The parties married in Australia in February 2010 after knowing each other for 2 years and living together for 13 months.  The review applicant stated that this marriage was purely about getting the piece of paper to acknowledge their relationship.  She also said that they always planned to have a proper wedding ceremony in Vietnam that their families could participate in.

32. All of the witnesses gave evidence attesting to the genuineness of the relationship at the previous hearing.  I note the same witnesses and others also provided supportive declarations in association with this application.

33. In particular, the Tribunal again notes the evidence of Ms Tran and the consistency of her supportive evidence with that provided at the previous hearing[3].  She said she regards the review applicant as her daughter and that she would not support the application if the relationship were not genuine.  Ms Tran owns her house and receives disability support pension.  She brought a copy of her current bank statement to the hearing to demonstrate to the Tribunal that she has the funds to provide support to the parties to establish their own home and family when they are able to live together in Australia again.

    [3] Ibid at paras 30, & 46-48

34. At the hearing the review applicant provided photographic evidence of her time spent with the visa applicant in Vietnam in 2014, including their marriage.  All of their family members, except for her mother who was ill at the time attended the wedding ceremony and celebration.

35. Given the extensive amount of consistent third party information concerning the relationship that has been provided in this case; the Tribunal is satisfied that since the beginning of the parties’ co-habitation in late 2009 they have represented themselves to communities, both in Australia and Vietnam as a married couple.   

    Nature of person’s commitment to each other

36. There is simply no evidence before the Tribunal that indicates that the parties are not in a committed relationship with genuine intentions to carry on conducting a long-term relationship.  The evidence of the review applicant is that her first relationship was abusive and that it took her a long time to commit to another long-term relationship with the applicant.  Her evidence in this regard has been corroborated by the visa applicant and Ms Tran.  It also explains why the parties have continued to keep their finances separate, to a large extent, as discussed above.    

37. According to all of the evidence the relationship has been a committed and genuine one for over 6 years.  Both parties have shown a significant degree of commitment to continuing the relationship on a long-term basis over this period. 

38. The Tribunal has also sighted extensive evidence of the parties’ communication with one another throughout the period they have been separated for the last 18 months. 

39. Accordingly, the Tribunal is satisfied, on the evidence provided, that the review applicant and visa applicant are in a long-term spousal relationship; they provide companionship and emotional support to each other and view the relationship as a long term commitment.

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

41. Therefore the visa applicant meets cl.309.211 and cl.309.221 and the requirements of r.1.15A.

42. 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

43. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the 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

    ·r.1.15A

    Ian Garnham
    Member

    
    

    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).