1419148 (Migration)

[2016] AATA 3268

1419148 (Migration) [2016] AATA 3268 (11 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Truong Quang Trinh

VISA APPLICANTS:  Mrs Thi Hoang Oanh Tran
Master Gia Phuc Huynh

CASE NUMBER:  1419148

DIBP REFERENCE(S):  OSF2014/026433

MEMBER:Catherine Wall

DATE:11 February 2016

PLACE OF DECISION:  Melbourne

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 (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 11 February 2016 at 8:56am

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 November 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 primary visa applicant is Ms Thi Hoang Oanh Tran is a 37 year old citizen of Vietnam. The secondary applicant is her 4 year old son, Gia Phuc Huynh. Ms Tran applied for the visa on 20 March 2014 on the basis of her relationship with their sponsor, Mr Truong Quang Trinh, a 54 year old Australian citizen. Mr Trinh is the review applicant in this case. 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211(2) and cl.309.221 because the delegate was not satisfied that the parties were in a genuine and continuing spousal relationship.

4. A copy of the decision record was submitted to the Tribunal by the applicant for the purposes of the review.

5. Mr Trinh appeared before the Tribunal on 2 February 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Ms Tran, and from the parties’ friends, Mr Nguyen Van Loc (Mr Loc), Trinh Minh Lam (Mr Lam).

6. The review applicant was represented in relation to the review by his 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 issue in the present case is whether at the time of application and time of this decision Ms Tran is in a spousal relationship with Mr Trinh.

   SPOUSE/DE FACTO (cl.309.211(2), cl.309.221)

   Whether the parties are in a spouse or de facto relationship

9. 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 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 citizen.

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. On the basis of oral evidence and a copy of a marriage certificate, the Tribunal finds that Mr Trinh and Ms Tran married in Vietnam on 3 January 2014. On the basis of a divorce certificate issued by the Family Court of Australia, the Tribunal finds that Mr Trinh divorced his former wife on 18 October 1993. On the basis of a divorce  certificate issued by the People’s court of District 1 of Ho Chi Minh City, the Tribunal finds that Ms Tran divorced her former husband on 28 January 2013.

12. On the evidence, the Tribunal finds that 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).

    Are the other requirements for a spousal relationship met?

13. At the outset the Tribunal notes that Tribunal found Mr Trinh and Ms Tran to be reliable witnesses who gave consistent evidence in respect of the key evidentiary issues considered by the Tribunal. The Tribunal found that their oral evidence was supported by documentary evidence, and was consistent with the evidence given by Mr Lam and Mr Loc.

    Formation and development of the relationship

14. Mr Trinh told the Tribunal that he first met Ms Tran in June 2012 at the airport in Vietnam, when he purchased goods at a shop in the terminal where she worked. He obtained her phone number and they communicated by phone upon his return to Australia. When Mr Trinh returned to Vietnam in May 2013, Ms Tran met him at the airport and they visited their respective families. Mr Trinh visited Vietnam again in November 2013 and during this visit the parties married. Mr Trinh has returned to Vietnam on 2 further occasions since his marriage.

    Nature of the commitment

15. The Tribunal found that the parties demonstrated a sound understanding of each other’s personal circumstances, consistent with their claim that they communicate regularly and that they have spent a total of 14 weeks together in Vietnam. Mr Trinh’s account of Ms Tran’s family members and of his step-son’s circumstances was detailed, and was supported by Ms Tran’s evidence and written material. Documentary evidence indicates that the parties have communicated frequently throughout their relationship.

16. The Tribunal accepts that the parties have spent considerable time with their respective families during Mr Trinh’s visits to Vietnam.  The Tribunal gives weight to the evidence that Mr Trinh encouraged Ms Tran to leave work in order to study, and that he has been financially supporting her in this regard. The parties gave consistent accounts of their plans for a life together in Australia, which includes sharing parenting responsibilities.

17. On the basis of the evidence, the Tribunal accepts that the couple draw a significant degree of companionship and emotional support from one another consistent with their claims of being in a genuine spousal relationship. The Tribunal also accepts that the couple see the relationship as a long-term and exclusive one.

    Nature of the household

18. The Tribunal accepts that the parties have spent 14 weeks together, during which time they have shared a household in their parents’ homes and in Ms Tran’s home in Ho Chi Minh City. Despite living in different countries during their relationship, the Tribunal finds that their efforts to share a household whenever possible are consistent with their claim that they are in a spousal relationship.

    Financial aspects

19. The Tribunal accepts, on the basis of oral evidence and copies of money transfers from 2013 to the present, that Mr Trinh has shared his financial resources with Ms Tran, and that the level of financial support has increased since Ms Tran ceased work. The Tribunal is satisfied that Mr Trinh’s actions are consistent with those of a spouse providing financial support to his partner and her family. 

    Social aspects

20. The Tribunal has had regard to a large number of photographs of the parties in various social settings. The Tribunal gives weight to oral evidence from Mr Lam and Mr Loc, both of whom attended the parties’ wedding and have socialised with them as a couple.  The Tribunal also gives weight to the evidence that Ms Tran accompanied Mr Trinh to his brother’s funeral in June 2015.

21. The Tribunal found that the parties’ evidence regarding their interactions with family in Vietnam and their social interactions, to be consistent and persuasive. On the basis of the evidence before it the Tribunal is satisfied that the parties’ respective families and social circles support and accept their relationship. The Tribunal also accepts that the parties present themselves publicly and socially as a married couple.

    Summary 

22. Considerably more evidence has been presented to the Tribunal than was before the delegate and the Tribunal has had the opportunity to test that evidence at hearing. The Tribunal finds the parties’ evidence and explanations to be persuasive.

23. Having had regard to the financial aspects, the nature of the household, the social aspects and the nature of the persons’ commitment to each other, the Tribunal considers these findings together demonstrate that there is a mutual commitment to a shared life as husband and wife to the exclusion of all others, and the relationship is genuine and continuing. The Tribunal is further satisfied that the parties live together and do not live separately and apart on a permanent basis. They therefore meet the requirements of s.5F for a married relationship.

24. 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.

25. The Tribunal finds, on the basis of a Certificate of Australian Citizenship, that Mr Trinh was granted citizenship on 11 December 1991. As the Tribunal is satisfied that Ms Tran is the spouse of an Australian citizen, the Tribunal finds that Ms Tran meets cl.309.211(2) and cl.309.221.

26. As the secondary visa applicant (Ms Tran’s child) applied on the basis of being a member of Ms Tran's family unit, his application will be determined by reference to the outcome of Ms Tran's visa application on remittal to the Department for reconsideration.

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

    DECISION

28. 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; and

    ·cl.309.221 of Schedule 2 to the Regulations.

    Catherine Wall
    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).