1505900 (Migration)

[2016] AATA 4141

1505900 (Migration) [2016] AATA 4141 (25 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anh Nguyen Nguyen

CASE NUMBER:  1505900

DIBP REFERENCE(S):  CLF2013/213773

MEMBER:Rania Skaros

DATE:25 July 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 25 July 2016 at 4:28pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 10 April 2015 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 30 August 2013 on the basis of his relationship with his sponsor. 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(d) because the delegate found that the applicant did not meet Schedule 3 criterion 3001 and was not satisfied that there were compelling reasons for not applying the Schedule 3 criteria.

4. On 29 June 2016 the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 26 July 2016. On 15 July 2016 the Tribunal received written correspondence from the authorised representative advising of the following; that the applicant had advised that his relationship with the sponsor, Ms Gia Linh Luu, had broken down and that the applicant is now in a de facto relationship with another person. The Tribunal was advised that the applicant would not be attending the scheduled hearing on 26 July 2016 as he is no longer in a relationship with the sponsor and that he wished for the Tribunal to make a decision in his case on the papers.

5. Given the above, the Tribunal is satisfied that the applicant does not wish to give oral evidence and has consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

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

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Clauses 820.211(2)(a) and 820.221 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 or Australian permanent resident or an eligible New Zealand citizen.

9. At the time of application, the applicant claimed to be the spouse of the sponsor, Ms Gia Linh Luu, who is an Australian permanent resident.

10. The issue in the present case is whether, at the time of this decision, the applicant is the spouse of Ms Luu as required by cl.820.221.

11. ‘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 parties’ 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?

12. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The applicant and the sponsor married on 27 July 2013 and a copy of their marriage certificate was provided to the Department. 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. The Tribunal has considered all of the circumstances of the relationship at the time of this decision.

14. In relation to the financial aspects of the relationship, the Tribunal notes that there is no current evidence before it to indicate that the applicant and Ms Luu have joint assets or liabilities, or that they have any financial obligations towards each other or that pool financial resources.

15. In relation to the nature of the household, there is no current evidence before the Tribunal to indicate that the parties are living together, or that they are not living separately and apart on a permanent basis.

16. As to the social aspects of the relationship, there is no current evidence before the Tribunal to suggest that the applicant and Ms Luu, whose relationship has now broken down, represent themselves to others as being in a relationship with each other.

17. The evidence before the Tribunal indicates that the applicant and Ms Luu are not in a committed relationship with one another to the exclusion of all others. As detailed above, the Tribunal has been advised that the parties’ relationship has now broken down and that the applicant is now in a relationship with another person. The Tribunal finds on the evidence that the parties are not in a continuing relationship with each other. 

    Conclusions

18. Given the above, The Tribunal is not satisfied that at the time of decision the applicant and the sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others.  The Tribunal is not satisfied that the relationship is genuine and continuing. The Tribunal is not satisfied that the parties live together or not separately and apart on a permanent basis.  The Tribunal therefore finds that at the time of decision the applicant is not the spouse of the sponsor and does not meet cl.820.221(1)(a).

19. There is no evidence before the Tribunal to suggest, and the applicant has not claimed, that he meets any of the alternative criteria in cl.820.221.

20. The Tribunal accordingly finds that the applicant does not meet cl.820.221.

21. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

22. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Rania Skaros
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (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).