1935448 (Migration)

[2023] AATA 4714

1935448 (Migration) [2023] AATA 4714 (1 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Nick Koenig

CASE NUMBER:  1935448

MEMBER:Justine Clarke

DATE:1 December 2023

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 01 December 2023 at 1:16pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – financial aspects – nature of the household – social aspects – nature of the commitment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 360
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 309.211, 309.221, 309.321

CASES
He v MIBP [2017] FCAFC 206

Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139

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 on 9 December 2019 by a delegate of the Minister for Home Affairs to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (the Act).

2. On 22 November 2018, the first-named visa applicant (the visa applicant) applied for the visa based on her relationship with her sponsor, the review applicant. The second-named visa applicant was included as a secondary visa applicant. Both visa applicants are nationals of Vietnam.

3. At the time of application, the sponsor was [age] years of age, the visa applicant was [age] years of age, and the secondary visa applicant was [age] years of age. At the time of this decision, the sponsor is [age] years of age, the visa applicant is [age] years of age, and the secondary visa applicant is [age] years of age.

4. At the time the visa applicants applied for the visa, 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. The primary criteria include cl 309.211 and cl 309.221. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. The secondary criteria include cl 309.321.

5. The review applicant provided the Tribunal with a copy of the delegate’s refusal decision (the primary decision). The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.211 of Schedule 2 to the Regulations. The delegate assessed the application pursuant to cl 309.211(2) and found that the information and evidence, submitted in support of the application, was not sufficient to demonstrate that, at the time of application on 22 November 2018, the visa applicant satisfied the definition of spouse under s 5F of the Act.

6. The delegate noted a number of concerns, including stating:

   The evidence provided of your and your sponsor’s financial circumstances does not indicate a joint household, given the amount of time you and your sponsor claim to have resided together. The reason you provided for wanting to have children first before you applied for a partner visa is of significant concern, as is the limited amount of evidence of contact provided, given that you and the sponsor have had considerable periods of separation since you departed Australia [in] November 2018. It is also of concern that you chose to consult your family and sister before accepting the sponsor’s proposal of marriage after one month, as is your lack of knowledge regarding the sponsor’s previous relationships.

7. The delegate also noted that, on 15 February 2012, the visa applicant became an unlawful non-citizen when her Visitor visa ceased. The delegate then stated:

   During the interview you stated that you remained in Australia as your son was young, he was having problems at school and you wanted to take care of him. You further stated that you wanted to apply for a visa but your lawyer told you there was no available option and your son did not want you to leave. I am not satisfied with your explanation. It is unclear why you did not depart Australia when your visa expired and then investigate possible visa options to be able to stay with your son for a longer term than a visitor visa would allow, rather than remain unlawful in Australia.

   Given your history of breaching your visa conditions and only regulating your status after you had secured a sponsor, I am concerned of your commitment to the relationship. Given the serious concerns raised throughout this record, I find it likely that your relationship is contrived to facilitate gaining residence in Australia. Therefore, I am not satisfied that you have a long-term commitment to your sponsor and doubt whether, if granted a visa, you would remain in this relationship long term.

8. The delegate refused to grant the second-named applicant (the secondary applicant) the visa on the basis that he did not meet the primary criterion cl 309.211 or the secondary criterion cl 309.321.

9. On 16 December 2019, the review applicant applied to the Tribunal for review of the delegate’s refusal decision. The review applicant was represented in relation to the review.

10. Having reviewed and considered the evidence before it, the Tribunal considers that a hearing is not required in this review. Pursuant to s 360(2)(a) of the Act, the Tribunal considers that it should decide the review in the applicants’ favour based on the material before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue for determination in this matter is whether, at the time of application on 22 November 2018, the visa applicant was the spouse of the review applicant. As has been explained, the delegate was not so satisfied.

13. Evidence of events subsequent to the visa application is relevant if it ‘tends logically to show the existence or non-existence of facts relevant to the issue to be determined’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. In making findings about the status of the parties’ relationship at the time of application, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application.

14. In the circumstances of this case, the Tribunal considers that it is appropriate to make findings about cl 309.221 (a time of decision criterion) as well.

    Whether the parties are in a spouse or de facto relationship

15. Clause 309.211(2) requires that, at the time the visa application was made, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. With limited exceptions that only apply in relation to a decision to grant or not grant a Subclass 309 visa made on or after 20 August 2022, the visa applicant must continue to be the spouse or de facto partner at the time of the Tribunal’s decision: cl 309.221.

16. In the present case, the visa applicant claims to be the spouse of the review applicant who is an Australian citizen. The Department’s file contains a copy of the review applicant’s Certificate of Australian Citizenship and the bio-pages of his Australian passport. From the evidence before it, the Tribunal is satisfied that the review applicant is an Australian citizen.

17. ‘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 a married couple 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).

18. In forming an opinion about these matters, regard must be had to all 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 reg 1.15A(3), which is extracted in the attachment to this decision. Each specific matter contained in reg 1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

19. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The review applicant and the visa applicant married each other in [Australia] on 1 October 2017. A copy of ‘decorative’ Certificate of Marriage is on the Department’s 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 spouse relationship met?

20. In order to make the requisite findings about the s 5F(2)(b)–(d) requirements, the Tribunal has had regard to all the documents on the Department’s file and on the Tribunal’s file.

21. The Tribunal notes that it has had the advantage of many further submissions and much more documentary and photographic evidence than what had been before the delegate.

22. For example, soon after lodgement of the application for review, the representative’s firm lodged a number of documents in support of the case—see documents lodged on 23 January 2020. Amongst these documents are detailed ‘answers to the allegations of the decision maker’, which refer to each of the delegate’s criticisms and seek to rebut them. The Tribunal accepts all of the ‘answers’. The Tribunal notes that there is much evidence in support of various claims that were made.

23. The Tribunal notes that the written submissions of 15 July 2021 (titled ‘additional statement in support of the application’) detail the role the review applicant has played in the secondary applicant’s life such that it was submitted, ‘[The secondary visa applicant] regards [the sponsor] as his new father’.

24. The written submissions of 30 July 2021 relevantly stated:

    The couple met in November of 2012 that is nearly ten years ago.

    They have lived together as husband and wife in Australia for a period of five and a half years from April 2013 to November 2018.

    They married by way of a Civil Ceremony in October 2017 and a Traditional Ceremony in January 2018.

    [The visa applicant] returned voluntarily to Vietnam in November 2018 in order to comply with the requirements of the Migration Regulations.

    Her husband has returned to Vietnam three times in order to visit her.

    However because of the imposition of COVID restrictions he has not been able to see his wife since January 2020.[1]

    The [Review] Applicant misses his wife very much.

    He has certain physical and psychological problems which have been exacerbated by the prolonged period of separation.

    Physical problems include high blood pressure and diabetes.

    [1] It was submitted, in the ‘additional statement in support of the application’, dated 15 July 2021, that ‘[The sponsor] plans to return to Vietnam for a fourth visit to see his wife as soon as the COVID restrictions presently in place are lifted’.

25. Later submissions, dated 28 March 2022, reiterated these claims and stated that the prolonged separation was having a negative impact on both parties, and referred to their respective psychological and physical states. A private and confidential psychological report and a signed letter from a general practitioner were submitted in support of the claims made in respect of the review applicant.

26. The Tribunal notes that, on a number of occasions throughout the duration of this review, the representative requested priority processing of the application for review, but the Tribunal did not grant priority processing.

27. The Tribunal further notes that, in this review, evidence was submitted of the review applicant having declared, over many years, that the visa applicant is his spouse in his contact with the Australian Taxation Office.

28. Further evidence was provided that the review applicant had obtained temporary household registration in Vietnam in order to visit the visa applicant. The primary decision refers to the evidence in the period 3 May 2019 to 19 May 2019. This evidence was resubmitted in this review, along with evidence of registration in the periods [December] 2018 to [January] 2019; [December] 2019 to [January] 2020 and [June] 2022. The Tribunal also notes the many photographs (complete with annotations) that were submitted in respect of the late December 2019/early January 2029 trip. Much documentary evidence was submitted of sustained telephone contact and the review applicant having sent money to the visa applicant over the years when they were physically apart.  

29. The written submissions of 21 July 2022 detail the review applicant’s fourth visit to Vietnam to visit the visa applicant [in] June 2022. It was submitted that the review applicant was met at the airport by the visa applicant, that he stayed at her home throughout his visit, that the couple spent quality time together including sightseeing at various named places and meals with named members of the visa applicant’s family. It was submitted that ‘[t]he couple were fully accepted by [the visa applicant]’s family who accompanied them on many of their outings’. Much photographic evidence was submitted from this trip (all annotated). It was further submitted, ‘[s]ince returning to Australia he has kept in continual contact with [the visa applicant] by way of telephone calls, correspondence and financial support’. Documents were submitted to support these claims.

30. The written submissions of 13 June 2023 detail the review applicant’s fifth visit to Vietnam to visit the visa applicant [from] March 2023 [to] April 2023. These submissions detail that the review applicant was met at the airport by the visa applicant, that they went sightseeing at various named places, including a trip to Thailand together, and that they had meals with named members of the visa applicant’s family. The review applicant submitted a document titled ‘the diary of daily living activities’ which details what the parties did together each day and with whom. Much photographic evidence was also submitted from this trip (all annotated). It was further submitted, ‘[s]ince returning to Australia he has kept in continual contact with [the visa applicant] by way of Viber and telephone calls’. Again, documents were submitted to support these claims.

31. The Tribunal accepts the submissions which have been made and gives great weight to all the documentary and photographic evidence. With respect to the financial aspects of the relationship, the Tribunal accepts and gives weight to the evidence that the review applicant has been sending money to the visa applicant in Vietnam for many years. With respect to the nature of the household, the Tribunal finds that, prior to applying for the visas, the review applicant and the visa applicant had lived together in Australia for a substantial period. Since applying for the visas, they have lived together during the review applicant’s trips to visit the visa applicant in Vietnam. The Tribunal finds that they intend to live together again in Australia, and that the only reason they are living separately and not living together is because they are living in different countries. With respect to the social aspects of the relationship, the Tribunal finds that the review applicant and the visa applicant have represented themselves to other people as being married to each other and are accepted as such. With respect to the nature of the persons’ commitment to each other, the Tribunal finds that the parties’ frequent and ongoing communications with one another when they are physically apart is indicative of their genuine commitment to the relationship. The Tribunal is satisfied that the review applicant and the visa applicant have demonstrated, and continue to demonstrate, a level of commitment to one another and the spousal relationship as contemplated in the Regulations.

    CONCLUSION

32. As stated above, the Tribunal is satisfied that the parties are validly married, as required by s 5F(2)(a) of the Act.

33. From considering all the evidence before the Tribunal, including 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 reg 1.15A(3)), the Tribunal is satisfied that, at both the time of application and at the time of this decision, the review applicant and the visa applicant:

    ·had and have a mutual commitment to a shared life as husband and wife to the exclusion of all others, as required by s 5F(2)(b) of the Act;

    ·had and have a genuine and continuing relationship, as required by s 5F(2)(c) of the Act; and

    ·did not and do not live separately and apart on a permanent basis, as required by s 5F(2)(d)(ii) of the Act.

34. Based on the above, the Tribunal is satisfied that the requirements of s 5F(2) were met at the time the visa application was made and are met at the time of this decision. Therefore, the visa applicant meets cl 309.211 and cl 309.221.

35. In these circumstances, the ability of the secondary visa applicant to satisfy the secondary criteria in cl 309.321 should be reconsidered.

36. Given the findings above, the appropriate course is to remit the application for the visas to the Minister to consider the remaining criteria for the Subclass 309 visas.

    DECISION

37. 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.

    Justine Clarke
    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).