1510384 (Migration)

[2016] AATA 4104

1510384 (Migration) [2016] AATA 4104 (13 July 2016)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Van Thu Vo

CASE NUMBER:  1510384

DIBP REFERENCE(S):  CLF2012/228154

MEMBER:Rieteke Chenoweth

DATE:13 July 2016

PLACE OF DECISION:  Sydney  

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

Statement made on 13 July 2016 at 11:21am

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 9 July 2015 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 9 July 2015 on the basis of his relationship with his sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 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.801.221.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221 because the delegate was not satisfied that the applicant and the sponsor were in a spouse relationship.

4. The applicant appeared before the Tribunal on 12 July 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Van Ga Vo, the brother of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant continues to be sponsored by the sponsoring partner and is in a spouse relationship with her.

   Whether the parties are in a spouse or de facto relationship

8. Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

9. ‘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 sponsor’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?

10. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The parties were married on 2 November 2012.  There is a copy of the marriage certificate on the Department file. 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).

    Are the other requirements for a spousal relationship met?

11. The applicant is a 49 year old citizen of Vietnam.  He arrived in Australia on 22 March 2012 on a Subclass 300 (Prospective Marriage) visa.  He and the sponsor for the visa were married on 3 November 2012.  He was granted a Subclass 820 (Spouse) visa on 16 November 2012.

12. On 11 November 2014 the sponsor notified the Department that she wished to withdraw her sponsorship as the relationship had broken down.

13. On 11 November 2014 the delegate wrote to the applicant advising him that the sponsorship was withdrawn and inviting him to submit additional information. In the letter it set out the three circumstances in which he may continue to be considered for the grant of a Subclass 801 visa even if the relationship between him and the sponsor had ended. He was also contacted by phone on 31 March 2015 and he then stated that the relationship with the sponsor was continuing even though he was residing in Melbourne. He was asked to provide a statutory declaration from him and from the sponsor describing the circumstances of the claimed reconciliation. On 20 April 2015 he submitted a statutory declaration dated 13 April 2015 which he stated that his relationship with the sponsor had ended in September 2014 but that they had now reconciled and that the relationship was on the mend.  He did not provide a statutory declaration from the sponsor.

14. On 9 July 2015 the delegate made the decision not to grant the claim for the Subclass 801 visa.

15. In the response to the hearing invitation the migration agent stated that the sponsor would be attending the hearing. However, although the applicant’s brother attended the hearing his wife, who is the sponsor, did not attend.    

    Financial aspects of the relationship

16. The applicant told the Tribunal that he and his wife opened a joint bank account when he first came to Australia. However, his wife had subsequently demanded that he give her his card and he can no longer use the account. On the Department file there is a Commonwealth Bank statement concerning the joint account.  There is no evidence of any transactions on the account. The applicant said his sister helped him to open another account in his own name alone.  He said that he now gives all his earnings in cash to the sponsor for her use in the household.   He did not provide any documentary evidence of withdrawals from his account.  He said that as he is now back in Sydney and living with her they do the shopping together and she pays for the shopping with the money he gives her. He said that neither he nor the sponsor has made a will.  They have no joint assets or liabilities. 

    Nature of the household

17. The applicant said that he lived in Melbourne for a year because he was no able to find work in Sydney. In May 2015 he returned to Sydney to live with his wife at the address provided to the Department.  He said that all the household accounts are in his wife’s name. The lease for the Housing Commission accommodation is also in her name. He has no documentation to show that he is living at his wife’s address. The Tribunal asked him if he had any other documentation to show that he and his wife were in a spouse relationship.  He said that he could not read English and therefore had not known what documents to provide. The Tribunal put to him that he could have asked his representative what he should provide to the Tribunal. However, he said that his wife had said she would come to the hearing and provide all the documents and then told him that she would not come.

    Social aspects of the relationship

18. On the Department file there are a number of Forms 888.  One of these is from the sponsor’s younger sister who attests to the relationship being genuine.  The other is from the sponsor’s daughter who also attests to the relationship being genuine.  Both of these are dated November 2012 at the time of the application for the visa.

19. At the hearing the witness, who is the brother of the applicant, gave evidence that he visited the applicant and the sponsor at their home and also had coffee with them regularly. He said they were living together.

20. The applicant had not submitted any further documentation such as photos depicting them together. The applicant said that his wife had photos on her phone but would not give these to him.

21. There was no further documentary evidence submitted concerning this aspect of the relationship.

    Nature of persons’ commitment to each other

22. In his statutory declaration dated 13 April 2015 the applicant acknowledged that his wife had informed him that she considered that the relationship was over.  He made the statement that due to his work commitments in Melbourne he could not immediately return to Sydney. However, he continued to stay in contact with his wife over the phone. His contract in Melbourne was due to end in June 2015 and he planned to return to NSW permanently to spend more time with his wife.  He stated that he believed that in the last few months he had reconciled with his wife and the relationship was on the mend.

23. At the hearing the Tribunal asked the applicant why his wife had not attended the hearing although the hearing response had stated that she would do so.  He said that he did not know why as she had told him she would come and would bring all the documents. He said that he felt she abused her power over him by taking his money and not helping him with the visa.

24. The applicant said that he had obtained work in Melbourne at a time when he was having difficulty finding work in Sydney and that was why he was living in Melbourne at the time he made the statutory declaration.  He said that since his return to Sydney in about May 2015 he has been living at his wife’s address.

25. The Tribunal asked the applicant who he was presently working for in Sydney.  He said he was working in a warehouse packing clothes. He provided a copy of his tax statement for the period 30 June 2015 to 30 June 2016 showing who his employer is. The Tribunal noted that the address provided on the statement was a different one from his wife’s address and asked him why this was so.  He said that when he first returned to Sydney his wife had evicted him from the house and he had gone to live at a friend’s house.  However, a month later she had asked him to come back and so he had moved back to her house. The Tribunal put to him that the statement of his earnings showing the different address was for the period ending 30 June 2016 which was not consistent with his living at his wife’s house at her address for the year after he returned to Sydney.  He said that he sometimes lived at his wife’s house and sometimes at the friend’s house and that he came and went. The Tribunal considers this is not consistent with his evidence to the Tribunal that on his return to Sydney he moved back in to his wife’s house.

26. The applicant indicated that there was considerable conflict between him and his wife about her not supporting his application for the visa.  He considered that she abused him by taking his money.

27. The Tribunal has considered the evidence concerning the relationship between the applicant and his wife.  The Tribunal finds that the applicant and the sponsor separated in September 2014 and that he was living in Melbourne at that time. The Tribunal considers that although the applicant claims to live with his wife and give her all his money, there is no documentary evidence to indicate that they have pooled their financial resources. On the applicant’s own account he does not have access to the joint Commonwealth Bank account and there is no evidence submitted that this account was ever used. There is also no documentary evidence such as letters addressed to the applicant at the sponsor’s address to indicate that the applicant resides at his wife’s address.  

28. The Tribunal notes that although the witness, who attended the hearing to support his brother, gave evidence that the couple live together the applicant also submitted a document which was a record of his earnings for taxation purposes, which showed a different residential address for the applicant. The Tribunal places little weight on the evidence of the witness.  It does not accept the applicant’s explanation concerning why the document he submitted showed him having a different residential address from that of his wife.  The Tribunal is not satisfied that the applicant lives at his wife’s residential address.

29. At the hearing the applicant gave evidence that there is conflict between him and his wife.  He claimed she did not want to attend the hearing to support his application for the visa. The Tribunal considers that this indicates that the sponsor is not committed to the relationship.

30. The Tribunal is not satisfied that the applicant and the sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others.  It is not satisfied that the relationship between them is genuine and continuing and that they live together or do not live separately and apart on a permanent basis. 

31. Given these findings the Tribunal is not satisfied that at the time of this decision the parties are in a spousal relationship. Therefore the applicant does not meet cl.801.221(2)(c).

32. Furthermore, the applicant has not claimed, and there is no evidence before the Tribunal, that the applicant meets the alternative criteria in cl.801.221 (2A), (3), (4), (5) or (6).

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

    DECISION

34. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

    Rieteke Chenoweth
    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).