1809962 (Migration)

[2021] AATA 5347

1809962 (Migration) [2021] AATA 5347 (24 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1809962

MEMBER:Stephen Conwell

DATE:24 December 2021

PLACE OF DECISION:  Melbourne

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) visa:

·cl 820. 211(2) of Schedule 2 to the Regulations

·cl 820.221 of Schedule 2 to the Regulations

Statement made on 24 December 2021 at 3:54pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and ongoing relationship – sponsor’s visits to Vietnam – joint business – pooled financial resources – regular money transfers to the applicant’s son – support statements by business clients – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, r 1.15; Schedule 2, cls 820.211, 820.221

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 18 November 2015 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (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 visa was refused because the delegate was not satisfied that the applicant was the spouse of the sponsor, as defined under the Act and therefore she did not satisfy cl.820.211(2)(a).

4. The applicant provided a copy of the delegate’s decision to the Tribunal for the purposes of the review. The applicant was represented in relation to the review by her registered migration agent (representative).

5. The hearing was held during the coronavirus (COVID-19) pandemic. Having regard to the nature of the review, and the objectives of the Tribunal to provide a mechanism of review that is just, fair, economical and quick, the Tribunal determined that it was appropriate that this review be conducted by way of video conference. The Tribunal exercised its discretion to hold the hearing by video conference. The applicants raised no objections as to conducting the hearing in this manner.

6. The applicant and sponsor participated in the hearing by video conference on 14 December 2021 to give evidence and present arguments.  The Tribunal also received oral evidence from witnesses, [Witness A] and [Witness B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The representative and interpreter also attended the hearing by video.

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 the applicant is the spouse of the sponsor as defined in s.5F of the Act.

9. 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. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.

10. Section 5F 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 of the relationship; the nature of the household and the persons’ commitment to each other as set out in r.1.15A (3), which is extracted in the attachment to this decision.

11. The Tribunal has regard to all of the evidence before it contained in the Department and Tribunal files including but not limited to, the decision record dated 4 April 2018, a joint written statement by the sponsor and applicant dated 28 September 2021, written character references and letters of support from business associates and customers of the parties’ joint business, lease agreement, photographic and miscellaneous evidence in support of the application, as well as the oral testimonies given at the hearing.

    Background

12. The applicant is [an age]-year-old Vietnamese national. The sponsor is [an age]-year-old Australian citizen. According to the relationship history set out in the decision record and confirmed by the applicant at the hearing:

    ·            the parties became friends on Facebook in February 2014. They first met in person in August 2014 when the sponsor travelled to Vietnam to meet the applicant and stay with her family.  [In] September 2014, the sponsor returned to Australia;   

    ·   [in] March 2015, the sponsor's mother travelled to Vietnam to meet the applicant and her family. Shortly thereafter both parties’ families met to discuss a potential marriage between the parties;

    ·   [in] May 2015, the sponsor returned to Vietnam to again stay with the applicant and her family. On [a day in] June 2015, the sponsor and applicant held a wedding ceremony in Vietnam.  A few days later, the sponsor returned to Australia;         

    ·   [in] August 2015, the applicant arrived in Australia, staying with the sponsor's brother and his family. After a month the applicant relocated to move in with the sponsor's sister; she undertook training in [occupation 1];

    ·   in June 2016, the parties rented a room at [Address 1], a suburb of Melbourne;

    ·   [in] November 2016, the applicant returned to Vietnam on a temporary visit, with the sponsor joining her  in January 2017. The parties returned to Australia together [in] February 2017

    ·   the sponsor has two children from his previous marriage – two daughters, [specified ages] years old; the applicant has a son, [age] years old who lives with his grandparents in Vietnam.

    Whether the parties are in a spouse or de facto relationship

    Are the parties validly married?

13. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. According to the decision record, the delegate found that the parties were validly married. The parties testified at hearing that on [a day in] June 2015 they held a wedding ceremony in Vietnam. On the basis of the evidence before it the Tribunal finds that the parties’ marriage is valid for the purposes of the Act as required by s.5F(2)(a).

    Are the other requirements for a spousal relationship met?

    Financial aspects of the relationship

14. The Tribunal considered the evidence in relation to the financial aspects including joint ownership of assets, joint liabilities, any legal obligations owed to the other party, the extent of pooling of financial resources and any sharing of day-to-day household expenses.

15. In addressing this factor the parties submitted evidence of their joint personal bank account with [Bank 1], their business bank account  with [Bank 2], their  Business Licence Agreement for their [service] business (for which they are joint licensees), as well as taxation and superannuation documents.

16. The bank statements for the parties’ joint [Bank 1] personal account cover the period from 28 August 2017 to 28 June 2021. Apart from a significant deposit from a superannuation fund, exceeding 7,000AUD in September 2017, the transactions consist mainly of deposits of smaller sums, usually being transfers from other accounts. The withdrawals are mainly small transactions for the purchase of groceries, clothing, pharmaceuticals and the like. The bank statements of the parties’ joint [Bank 2] business account cover the period from 20 December 2019 to 3 September 2021. The transactions consist mainly of Point of Sale deposits for the sale of business services, with the purchases being for food, petrol, purchase of business supplies and the like.  Both accounts corroborate the parties’ evidence concerning their personal lives and business relationship. 

17. The parties’ joint statement of 28 September 2021 directly addresses many of the delegate’s concerns, including a query regarding a proposed Contract of Sale dated 17 March 2018 for the  purchase of real estate. The parties’ joint statement notes that the sale didn’t proceed because finance could not be arranged. The parties’ [service] business was purchased by payment of a licence fee of $75,000 in November 2019. The money came from the parties’ savings and from borrowing from relatives. The parties testified that the business has been performing well, but like most small businesses, it has been adversely affected by the Victorian lockdowns.  During the most recent lockdowns the parties were able to supplement their income through both gaining casual employment at [a named business] for a few weeks from 9 September 2021. The applicant told the Tribunal that their [service] shop most recently reopened on 22 October 2021 and both parties have returned to working full-time there.

18. The evidence submitted includes each of the parties’ Australian income tax returns for 2018, 2020 and 2021. Both parties list the other as their respective spouses. The applicant has provided evidence of her superannuation account from 2017 onwards, however evidence of her nominated beneficiary(ies) does not appear to have been included. The sponsor has provided evidence of his superannuation account from 2014 onwards; from his 2018 superannuation statement onwards the applicant is nominated as the sole beneficiary.  Whilst such tax and superannuation nomination of beneficiaries may be easily be changed, the Tribunal accepts that the parties’ nominations of each other are genuine and not motivated by seeking a particular migration outcome.

19. The parties’ joint statement also responds to the delegate’s query regarding the monthly financial support that the sponsor provided to the applicant’s son in Vietnam. Documentary evidence before the delegate showed that the sponsor provided monthly financial support to the applicant’s son between 27 September 2017 and 12 February 2018. The joint statement explains that when the sponsor first began sending money to the applicant (before her arrival in Australia), he resided at his sister-in-law’s home in [Address 2].  Some months after her arrival in Australia, in June 2016, the parties rented a room at [Address 1].  When the sponsor began sending money to the applicant’s son, he used the same money transfer services and it was not thought necessary to update their records of the sponsor’s new address. Hence the remittance receipts continued to show that sponsor’s address as being on [Address 2].  The applicant affirmed this account in her oral testimony, adding that as the parties’ business obligations grew, it was more difficult for the sponsor to provide regular financial support to the applicant’s son. She stated that fortunately, one of her sisters in Vietnam has a successful [business] and was willing to provide financial support to the applicant’s son to ease the financial burden of the parties.

20. The Tribunal has the benefit of assessing the credibility of the parties at the hearing; having found the parties to be genuine and credible in their testimonies, the Tribunal accepts the applicant’s explanation regarding the financial support of her son in Vietnam.

21. The Tribunal accepts the evidence of the parties’ joint business undertaking in purchasing a [service] business in which they are both licensees and in which they both work full-time.  It accepts the evidence that both parties have both contributed financially to the purchase of the business licence through savings and borrowing from their respective families.

22. There is no evidence before the Tribunal that, at the time of application or at the time of this decision, the applicant and the sponsor jointly owned any real estate or other major assets or that they have any joint liabilities, apart from their joint business. There is no evidence that one person in the relationship owes any legal obligation in respect of the other.

23. The Tribunal finds that the evidence demonstrates a pooling of financial resources and sharing of day-to-day household expenses between the parties, both as a married couple and as business partners. The Tribunal finds these financial factors to be an indicator of a spousal relationship at the time of application and time of decision.

    Nature of the household

24. The Tribunal considered the evidence in relation to the nature of the household including any joint responsibility for care and support of children, the parties' living arrangements and any sharing of housework.

25. The parties’ joint statement addresses the delegate’s concern regarding the applicant’s living arrangements since her arrival in Australia. She elaborated on this in her oral testimony at hearing.  The applicant stated that when she first arrived in Australia she and the sponsor lived as a couple in the sponsor’s brother’s home [at Address 3]. After a month the parties relocated to the sponsor’s sister’s home [at Address 2], where the sponsor’s parents also live.  In June 2016, the parties rented a bungalow at the back of a property [at Address 1], with the property owners living in the main house on the property.  The evidence is that the owners of the [Address 1] property did not require a formal lease agreement, the leasing arrangement being that the parties paid the monthly rent in advance in cash and the cost of utilities were shared equally between the owners and the parties.

26. The parties testified that in all these living arrangements the applicant and sponsor lived together as a married couple in their own room. In relation to the sharing of the responsibility for housework throughout the period of the relationship, the applicant told the Tribunal she is mostly responsible for the cooking and the sponsor does the cleaning and other chores.

27. The Tribunal considers that the evidence presented relating to the nature of the household at the time of application and at the time of decision is an indicator of a genuine and continuing spousal relationship.

    Social aspects of the relationship

28. The Tribunal considered the evidence in relation to the social aspects of the relationship including whether the parties represent themselves to other people as being married to each other, the opinion of friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities.

29. In her oral testimony the applicant stated that all her family is in Vietnam – her parents, [specified family members] and her son. The sponsor has his parents and [specified family members] all living in Melbourne, as previously noted. The limited socialising that the parties engage in centres upon the sponsor’s family and within the context of their business and its clientele.

30. The parties had proposed seven of the business’ clients to appear as witnesses in support of the application.  The Tribunal considered it necessary to speak only to two of these witnesses, [Witness A] and [Witness B]. Both  witness were fulsome in their positive comments about the parties, both in the context of their relationship and as hard-working small business owners.  Both witnesses described themselves as both friend and loyal customers of the parties and their [service] business. The Tribunal finds both witnesses to be credible and genuine in their evidence.

31. The Tribunal is satisfied that the parties represented themselves to others as being married to each other at the time of application and continue to do so at the time of decision.   

    The nature of the persons’ commitment to each other

32. The Tribunal considered the evidence in relation to the nature of persons’ commitment to each other including the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other and whether they see the relationship as long-term.

33. The applicant told the Tribunal that each provides the other with emotional support and consolation in relation to family and business matters . She said, in particular the sponsor provides her with emotional support whenever she is sad about being in Australia with all of  her own family in Vietnam. She said that the parties’ mutual commitment has grown since she arrived in Australia and their partnership as a couple has been strengthened by their shared commitment to their business.  The sponsor gave consistent evidence in this regard.

34. The applicant told the Tribunal that their future plans include continuing to make their business a success and also to being able to buy their own home at some stage. The sponsor gave generally consistent evidence in this regard.

35. During the hearing the Tribunal observed the parties to display an understated but genuine affection and commitment towards each other.

    Conclusion

36. Based on the evidence, including the oral testimonies of the parties, and having assessed them to be genuine and credible witnesses, the Tribunal concludes that:

    ·   the sponsor and the applicant are married to each other under a marriage that is valid for the purposes of the Act;

    ·   they are not living separately and apart on a permanent basis and that they see their future as a long term one;

    ·   they have a mutual commitment to a shared life together to the exclusion of others; and

    ·   that the relationship is genuine and continuing.

37. Given these findings the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made and the time of this decision. Therefore, the applicant meets cl.820.211(2)(a). The Tribunal finds that the applicant meets cl.820.211 (2) and that she continues to meet the requirements of cl.820.211(2) at the time of decision. Therefore, the applicant meets cl.820.221.

38. 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.

39. On the basis of the above the Tribunal is satisfied that the requirements of s 5F(2) are met at the time the visa application was made and the time of this decision.

    DECISION

40. 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) visa:

    ·cl 820.211(2) of Schedule 2 to the Regulations

    ·cl 820.221 of Schedule 2 to the Regulations

    Stephen Conwell
    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).