2000355 (Migration)

[2023] AATA 4711

2000355 (Migration) [2023] AATA 4711 (21 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Huu Loc Nguyen (MARN: 1795573)

CASE NUMBER:  2000355

MEMBER:Justine Clarke

DATE:21 December 2023

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(1) of Schedule 2 to the Regulations

·cl 820.221(1)(a) of Schedule 2 to the Regulations

Statement made on 21 December 2023 at 12:10pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – applicant and the sponsor pool their financial resources in their joint bank account – evidence of shared responsibility for housework – have been married for almost eight years – validly married –social aspects of the relationship are consistent with a married relationship – couple had a mutual commitment to a shared life to the exclusion of all others – decision under review remitted        

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

CASES
Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139
He v MIBP [2017] FCAFC 206

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 6 January 2020 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. On 7 March 2016, the applicant, who is a national of Vietnam, applied for the visa based on her relationship with her sponsor, Mr [A]. At that time, the applicant was aged [age] years and the sponsor was aged [age] years. At the time of this decision, they are [age] and [age] respectively.

3. At the time the applicant applied for the visa, 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. The primary criteria include cl 820.211(1) and cl 820.221(1).

4. The applicant provided the Tribunal with a copy of the refusal decision (the primary decision). The delegate assessed the application pursuant to cl 820.211(2), finding it to be the only subclause relevant to the applicant’s circumstances, 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 7 March 2016, the applicant satisfied the definition of spouse under s 5F of the Act.

5. With respect to the financial aspects of the relationship, the delegate found that the ‘only financial links were the joint account that was used minimally’; ‘that this account was likely created solely for the purpose of the application and has no major use in [the parties’] daily transactions’; and that the parties ‘were not able to provide sufficient information about the other’s finances’ and that the ‘financial dealings do not sufficiently demonstrate a couple who claim to have been in a committed partner relationships since 2014’.

6. With respect to the nature of the household, the delegate was satisfied that the parties live in the same residence with the applicant’s uncle but was not satisfied as to the nature of the living arrangements. They stated, ‘I have concerns based on the evidence given at interview[1] and the lack of evidence of a relationship between you and the sponsor, that your sponsor is living there due to his close association with your uncle, and that whilst you may provide some assistance in caring for the sponsor, that the relationship is not a marital one in nature’.

   [1] According to documents on the Department’s file, the interview was conducted on 29 October 2019. The copy of the Department’s file provided to the Tribunal in this review does not contain a record of the questions asked or the responses given at the interview.

7. With respect to the social aspects of the relationship, the delegate stated, ‘[y]ou and your sponsor were unable to demonstrate either through evidence or at interview any social links between you both other than your time spent living with your relatives in their home’ and that ‘[y]ou both indicated that you had not been away together at all for even a day trip in your 4 years of marriage’. The delegate concluded, ‘[b]ased on the evidence before me and the answers provided at interview, that included a number of conflicting statements I am not satisfied that you and your sponsor have demonstrated the social aspects of your relationship that would likely exist between a couple in a genuine marital relationship’.

8. With respect to the nature of the persons’ commitment to each other, the delegate noted the applicant’s claim that she had been in the relationship with the sponsor since 2015 but found that the evidence of the relationship was inconsistent with the claimed duration of the relationship. The delegate considered there to be insufficient evidence before them to make findings that the parties draw emotional support and companionship from each other or that they each see the relationship as a long-term one. Rather, the delegate noted that the parties had different expectations regarding the future, with the sponsor expecting them to move out together and the applicant maintaining that they would continue to live with her uncle. The delegate also noted that the parties had not changed the terms of their wills or superannuation, with such changes being evidence that parties see their relationship as a long term one.

9. The delegate made no findings in respect of the time of decision criterion in cl 8250.221(1).

10. On 8 January 2020, the applicant applied to the Tribunal for review of the delegate’s refusal decision. The applicant was represented in relation to the review.

11. On 26 April 2023, the Tribunal wrote to the applicant, by way of the representative, to invite her to provide further information and evidence to support her claimed partner relationship with the sponsor. The Tribunal requested that the information or evidence be submitted by 10 May 2023.

12. On 8 May 2023, the representative sought an extension of time until 17 May 2023 on behalf of the applicant.  

13. On 17 May 2023, the representative submitted further evidence on behalf of his client.

14. Written submissions and further evidence was also submitted prior to the hearing.

15. On 19 September 2023, the applicant appeared in person before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and from [Mr B] (the applicant’s uncle). The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The representative also attended the hearing in person. As the hearing could not be completed within the allocated time, the hearing was adjourned.

16. The in-person hearing resumed on 24 October 2023. The Tribunal received oral evidence from the applicant and the sponsor. Again, the Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages and the representative attended the hearing in person.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The primary criteria to be satisfied at the time of application are set out in cl 820.211(1). This requires that the applicant is not the holder of a Subclass 771 (Transit) visa and that she meets one of the alternate requirements set out in cl 820.211(2), (5), (6), (7), (8) or (9).

19. The Tribunal has reviewed the applicant’s movement records which also detail her visa status at various times. The Tribunal is satisfied that, at the time of application on 7 March 2016, she was not the holder of a Subclass 771 (Transit) visa. Therefore, the Tribunal finds that cl 820.211(1)(a) is met.

20. The subclause relevant to the applicant’s circumstances is cl 820.211(2). Accordingly, in this case, the issue for determination is whether, at the time of application on 7 March 2016, the applicant and the sponsor were spouses for the purposes of the Act.

21. 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.

22. In the circumstances of this case, the Tribunal considers that it is appropriate to make findings about cl 820.221 (a time of decision criterion) as well.

    Whether the parties are in a spouse or de facto relationship

23. 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.

24. The applicant claims to be the spouse of the sponsor who is an Australian citizen. The Department’s file contains a certified copy of sponsor’s birth certificate evidencing that he was born in Australia and the bio-pages of the sponsor’s Australian passport. From the evidence before it, the Tribunal is satisfied that the sponsor is an Australian citizen.  

25. ‘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).

26. 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 parties’ 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?

27. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. On 2 January 2016, the applicant and the sponsor married each other in [a suburb], Victoria. A copy of the registered marriage certificate 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?

28. To make the requisite findings about the reg 1.15A(3) matters and 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 and to the oral evidence given at the hearing. The Tribunal notes that, in this review, it has had the benefit of further information and evidence than what had been before the delegate.

    Regulation 1.15A(3) matters

    The financial aspects of the relationship  

29. Any joint ownership of real estate or other major assets, any joint liabilities, the extent of any pooling of financial resources, whether one person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day-to-day household expenses are relevant matters when considering the financial aspects of the relationship.

30. At the hearing, the applicant gave oral evidence that she was working at a named [workplace] in a named outer south-eastern suburb of Melbourne and that she had been working there for 8 or 9 years. When asked, she said that the sponsor would know both the name of her employer and how long she had been working there. She said that he would know because, before they married in 2016, he had already visited her at her workplace. The applicant told the Tribunal that the sponsor was not working and that he received a pension of $750 a fortnight. She said that, when he had been working, he had worked as a [occupation] and that he had retired in December 2018.

31. The sponsor gave consistent oral evidence. He told the Tribunal that the applicant worked at the named [workplace], specifying that she worked on Mondays, Thursdays and Fridays (part-time work). He said that she had been working there for 8 or 9 years. He gave oral evidence that he was retired, and he said that, when he had worked, he had been a [occupation] at a named company in a named south-eastern suburb of Melbourne. He told the Tribunal that, at the time of the hearing, his only source of income was from his pension.  

32. There is no evidence before the Tribunal of any joint ownership of real estate or other major assets, any joint liabilities or that one person in the relationship owes any legal obligation in respect of the other.

33. When asked, the applicant said that they did not have wills. She explained that the sponsor’s only property was his car. She also told the Tribunal that she had not nominated the sponsor as the beneficiary of her superannuation, explaining that she had not done this because she does not know how to do it. When asked about any wills, the sponsor said that he used to have one, ‘long ago’. He said that he needed to make another one. He said that he was not sure whether the applicant had one. He was also unsure whether she had any superannuation. The Tribunal also asked the parties about what had happened to the proceeds from the sale of the sponsor’s property. The applicant said that, to her knowledge, the sponsor had given a portion to his sister. She said that she regarded it as a personal matter between the two of them, so she had not become involved. She said that the sponsor did not receive Centrelink support until he had spent that amount of money. The sponsor said that he had used some of the money to help fund his retirement and for funeral arrangements. While in another case, such responses may raise some concern, they do not concern the Tribunal in this case because the evidence before the Tribunal is the couple have limited finances.

34. The couple’s main joint asset appears to be their joint bank account. When the Tribunal asked the parties why they had opened a joint bank account, the applicant said that it was because the sponsor had wanted to have something in common and so he could share his income with the applicant. The sponsor gave consistent oral evidence.

35. Both parties also gave consistent oral evidence that they both deposited their earnings into the joint bank account. The sponsor explained that the entire amount of his pension was deposited into the joint bank account. Both parties told the Tribunal that the applicant was paid in cash and that she deposited the cash into the joint bank account. The Tribunal notes that the bank statements before the Tribunal evidence that the sponsor’s pension is deposited into the joint bank account, and that it has been for some time (at least since July 2022).

36. The Tribunal asked the applicant whether there was any other pooling of financial resources and she said that when they went to eat out, they took it in turns to pay or they used money from the joint bank account.

37. Based on the evidence before it, the Tribunal finds that the applicant and the sponsor pool their financial resources in their joint bank account.

38. At the hearing, the Tribunal noted that almost all the withdrawals from the account were in cash and asked the applicant to explain this. The applicant said that her husband withdraws cash for shopping and other expenditure. She said that he liked to use cash. She said that he does not know anything about technology. She said that he withdraws cash to go shopping at the two major Australian supermarket chains and to pay their rent.     

39. The applicant and the sponsor also gave broadly consistent oral evidence that they shared their day-to-day household expenses. They both said that they paid $800 for their portion of the rent. The sponsor gave further detail, explaining that he contributed $500, and the applicant contributed $300. He said that they paid on the 5th of each calendar month and that the applicant gives him the money and he makes the payment. He also said that gas and electricity were included with their rent. He said that with food, sometimes he paid and sometimes the applicant paid. He also said that, occasionally, they sent money to the applicant’s parents in Vietnam. The applicant also told the Tribunal about this. The sponsor also said that, when they had been living at their first address, he had paid for the mortgage and the applicant had paid for their food.

40. The Tribunal found both parties to be credible when giving their oral evidence about the financial aspects of their relationship. The Tribunal considers that they have arrived at financial arrangements which suit them both. The Tribunal also notes that there is some documentary evidence, albeit limited, in support of a number of their claims.

41. The Tribunal gives some weight to the evidence of the financial aspects of the relationship. The Tribunal considers that, to some extent, the evidence points to the parties being in a spousal relationship both at the time of application and at the time of this decision.

    The nature of the household  

42. Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are relevant matters when considering the nature of the household.

43. The applicant and the sponsor do not have any biological children together. When asked, both parties told the Tribunal that neither of them has any children from any previous relationship. In the circumstances, the Tribunal finds that there is no joint responsibility for the care and support of children.

44. With respect to the living arrangements of the persons, the applicant and the sponsor gave consistent oral evidence that they had lived at two different properties together: first, the applicant’s property in [Suburb 1] and later at the applicant’s uncle’s home at a stated address in a different south-eastern suburb of Melbourne. (The uncle is [Mr C]). The sponsor explained that the applicant’s uncle was also his friend from when they had worked at a named [company]. ([Mr C]’s statutory declaration of 17 May 2023 corroborates the claim of their friendship since working together). They both said that the wife and son of the applicant’s uncle also lived at the property. They both said that it had just been the two of them living at the [Suburb 1] property and that they had lived there from 2016 to 2018. The applicant clarified that she had started living there after their marriage registration. Similarly, the sponsor stated that they had started living together when they had married.

45. The Tribunal asked the applicant to respond to the difference in responses as to when they had started living together, as outlined in the delegate’s refusal decision. The delegate had stated:

    I note at interview your sponsor indicated that you moved into his home prior to your wedding whilst you were adamant that you did not move in together until after the wedding as your family would not approve of you living with someone before marriage.

46. The applicant said that the sponsor had told her that he had misunderstood the question at the interview. She said that he is quite a slow person to pick up on the message. The Tribunal accepts the applicant’s explanation. The Tribunal considers that this difference in answers at the Departmental interview is not the reason, or part of the reason, for affirming the decision under review.

1. At the hearing, the sponsor stated that they had moved to their current address in December 2018, after he had retired. The Tribunal notes that the sponsor has been consistent in giving this date, as the delegate stated that the sponsor had given this date at the Departmental interview. The Tribunal is not concerned that, in her Departmental interview, the applicant said that it was in 2019. The Tribunal considers that this difference in answers at the Departmental interview is not the reason, or part of the reason, for affirming the decision under review.

2. The Tribunal did not ask the parties about their plans to stay living at this house or to move elsewhere. The Tribunal notes the delegate’s concern that different answers had been given by the parties at the Departmental interview, but the Tribunal is of the view that this is not the reason, or part of the reason, for affirming the decision under review.

3. With respect to any sharing of the responsibility for housework, the Tribunal asked the applicant and the sponsor who does the shopping, cooking and cleaning. Both persons gave consistent oral evidence that they both went shopping for groceries. The applicant said that they went to the two large Australian supermarket chains for their food, noting that the sponsor prefers western food like ham and cheese. She said that the other members of the household go shopping separately because they eat differently. With respect to cooking, they both said that the applicant did the cooking. The applicant said that there was different cooking within the house for different family members but that she cooked for her husband. The sponsor said that the applicant cooked things that she knows that he likes such as spring rolls, T-bone steak, sausages and fish. With respect to cleaning, they both gave broadly consistent oral evidence that they shared the responsibility. The applicant said that whoever was free did it whereas the sponsor said that he did it. They both also mentioned the washing, explaining that the applicant did the washing and the sponsor assisted with pegging it out.

4. Limited third-party evidence and photographic evidence has been submitted to corroborate this claim as to the shared responsibility for housework. The Tribunal notes that in his statutory declaration of 17 May 2023, Mr [B] (the applicant’s uncle who attended the first hearing) declared that he had witnessed the applicant prepare food for the sponsor. The Tribunal gives some weight to this evidence. The Tribunal is of the clear view that the limited corroborating evidence of shared responsibility for housework is not the reason, or a part of the reason, for the Tribunal to affirm the decision under review. 

5. The Tribunal considers that the evidence of the nature of the household is suggestive of a spousal relationship both at the time of application and at the time of this decision and accordingly the Tribunal gives weight to it.

   The social aspects of the relationship

6. Whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities are relevant matters when considering the social aspects of the relationship.

7. With respect to whether the persons represent themselves to other people as being married to each other, both the applicant and the sponsor gave oral evidence that the applicant’s aunt and uncle had attended their wedding registration. The Tribunal understands that this is the couple that the parties now live with. The Tribunal notes that the registered marriage certificate lists these two people as being witnesses to the marriage (although the spelling of some names is slightly different).

8. The applicant gave oral evidence that this uncle, [Mr C], is the sponsor’s only friend.

9. She explained that they had not had a wedding reception or party, only the wedding registration and a meal at home afterwards. She told the Tribunal that this was because the sponsor had been a single person and he had not wanted a big or noisy reception and had not wanted to ‘show off’. He had been of the view that they love each other and that is enough.  

10. The Tribunal asked the applicant whether the sponsor’s sister and brother-in-law had attended the wedding registration. She said that they had not. The Tribunal then asked her why they had not attended. She said that it was because the sponsor’s brother-in-law was sick, and the sponsor’s sister had to care for him.

11. The Tribunal asked the sponsor whether there was a reason that the applicant’s uncle [Mr B] (who had given oral evidence at the hearing) had not attended the wedding registration. He responded that he was not sure why he had not attended. The Tribunal also asked the sponsor why the applicant’s friends had not attended the wedding registration. He explained that they had wanted a quiet wedding. He said that he does not have many friends as most of his friends have died. The Tribunal asked the sponsor why his sister had not attended. He replied that he thought that it was because she could not attend because she had gone away.

12. The Tribunal notes that there is a possible inconsistency in the oral evidence given by the applicant and the sponsor as to why the sponsor’s sister had not attended their wedding registration. Given the passage of time since the wedding registration (at the time of this decision, it is almost eight years ago) and the very real possibility that either or both parties do not recall the reason with precision, the Tribunal takes the view that this possible inconsistency is not the reason, or a part of the reason, for the Tribunal to affirm the decision under review.

13. Both the applicant and the sponsor gave consistent oral evidence that, since marrying, they had both met up with the sponsor’s sister [Ms D] and her partner [name] and the Tribunal notes that there is photographic evidence of this meeting. The applicant said that they did not socialise with this couple very often because they live ‘too far’ and because [Ms D]’s husband is sick, and she cares for him.

14. From the evidence before the Tribunal, the Tribunal finds that the parties have each represented, to their families, that they are married to each other. The numerous statutory declarations that are before the Tribunal also evidence that the parties have represented themselves, to various other people, that they are married to each other.

15. With respect to the opinion of the persons’ friends and acquaintances about the nature of the relationship, the Tribunal asked the applicant and the sponsor whether they would say that their family and friends approve of the relationship. The applicant replied in the affirmative and the sponsor said that his sister was ‘quite happy with it’ and that, as far as he knew, friends approve too. The sponsor added that, when they first married, the applicant’s family were not so approving because of the age difference. He said that they had accepted it now. This oral evidence accords with the evidence given by others.

16. The Tribunal notes, accepts and gives weight to the credible oral evidence given by [Mr B] (the applicant’s maternal uncle) at the hearing. When asked, he clarified that he was not the uncle who had attended the parties’ wedding and he did not live with them. When asked whether he was of the opinion that they were in a genuine and continuing relationship, he replied, ‘for sure’. He said that they had been living together for a long time, they were happy and that he had observed that at parties and other events that they looked after each other quite carefully. The Tribunal asked him how often he socialised with the applicant and the sponsor, and he replied that it was ‘sometimes, on weekends’. He said that he went to their place, they come over to his place and that they also go out. In his own words, ‘we’ll get together and have chat and drinks’. When the Tribunal asked this witness whether there was anything further that he wished to say, he said that, in the beginning, he had disapproved of the relationship because of the age difference. But he said that, over time, having observed them living happily together, he had changed his mind and that, now, he was happy for them. He said that, after the parties had commenced their relationship, he had taken the sponsor to Vietnam on two occasions to meet the applicant’s parents. He said that he had wanted the sponsor to get to know the family.   

17. In addition to this oral evidence, the Tribunal notes the extensive documentary evidence from the persons’ friends and the applicant’s family members about the nature of the relationship, both on the Department’s file and in this review.

18. The Tribunal notes that the following statutory declarations were before the delegate:

    ·Form 888 statutory declaration of Ms [E] (the applicant’s aunt) made on 1 August 2018; and

    ·Form 888 statutory declaration of [Mr C] (the applicant’s uncle and the husband of Ms [E]) made on 1 August 2018.

19. In addition, in this review, the applicant submitted the following statutory declarations:

    ·Statutory declaration made by [Mr F] (the applicant’s friend) on 16 May 2023;

    ·Statutory declaration made by [Mr C] (the applicant’s uncle) on 17 May 2023

    ·Statutory declaration made by Mr [B] (the applicant’s uncle) on 17 May 2023;

    ·Statutory declaration made by [name] (the friend of the applicant’s aunt) on 17 May 2023;

    ·Statutory declaration made by [name] (the wife of the applicant’s uncle) on 22 May 2023;

    ·Statutory declaration made by [name] (the applicant’s friend) on 22 May 2023;

    ·Statutory declaration made by [name] (the applicant’s friend) on 22 May 2023; and

    ·Statutory declaration made by [Mr B] (the applicant’s uncle, who also appeared at the hearing and gave oral evidence) on 12 September 2023.

20. The various declarants attest to their knowledge and, in many cases, approval of the partner relationship between the applicant and the sponsor. The Tribunal accepts and gives weight to the various declarations. The Tribunal considers that the opinion of the persons’ friends and acquaintances about the nature of the relationship suggests that, at the time of this decision, the applicant and the sponsor are in a spousal relationship.

21. At the hearing, the Tribunal asked the applicant to respond to the delegate’s concerns about the socialisation with the applicant’s friends, expressed in the primary decision as:

    Your sponsor indicated that your friends from work would come over to your home 3–4 times per week, but that he did not know their names as he could not pronounce them, whilst you indicated that you had no friends who visited the home.

22. The applicant responded by noting that she had not had an interpreter at the Departmental interview and that perhaps her answer stemmed from a misunderstanding. She said that her friend [name] had come to the house two or three times.

23. The Tribunal notes that the primary decision states that, at the start of the Departmental interview, the applicant requested the use of a Vietnamese interpreter but, after discussion, the interview was carried out without one, in the words of the delegate, so that the applicant could ‘demonstrate [her] English ability’. However, the delegate was critical of the applicant’s English ability stating:

    I do however have concerns that an applicant who maintained regular English conversation with her husband for over 4 years would not have developed better English-speaking skills than you have. I have concerns that the relationship does not involve regular conversation as would be expected of a marital couple.

24. In the circumstances where the applicant requested a Vietnamese interpreter at the Departmental interview but the interview proceeded without one, where the delegate expressed the opinion that the applicant’s English-speaking skills were not sufficiently strong to maintain ‘regular conversation as would be expected of a marital couple’ and where witnesses of the relationship such as [Mr B] had observed that ‘the language barrier between them may pose some challenges’ (see his statutory declaration of 12 September 2023), the Tribunal considers that the applicant’s response to the delegate’s concerns about the socialisation with the applicant’s friends is plausible. In this review, the delegate’s concerns about the socialisation with the applicant’s friends is not the reason, or a part of the reason, for the Tribunal to affirm the decision under review. 

25. With respect to any basis on which the persons plan and undertake joint social activities, the applicant and the sponsor gave broadly consistent oral evidence about dining out together. Both mentioned going to the ‘Hot Pot’ in [a suburb] for the applicant’s birthday. The applicant told the Tribunal that at the last occasion, 15–16 people had attended—‘all my family and some friends’. She noted that her grandmother had attended. The sponsor also noted that he had given the applicant some flowers. The Tribunal notes the photographs that were submitted in this review which appear to be from this occasion.

26. The applicant also said that, during school holidays, they go to [a suburb] for a coffee. The sponsor said that they go to restaurants around three times a month. The Tribunal notes that some photographs were submitted of the parties eating out together, including on some occasions with others.

27. The Tribunal asked both parties about any holidays they had taken together. The applicant responded that they had not taken any holidays together. When asked why not, she said that the sponsor is a simple person and that, for him, living together is enough; being together is enough. She added that he also thought that they did not have the finances for holidays.

28. The Tribunal’s file contains a copy of the applicant’s movement records and the sponsor’s movement records. The records evidence that the applicant has not left Australia since the relationship with the sponsor started but that the sponsor has had two overseas trips in this time: the first was in June 2015 for two weeks and the second was from late December 2018 to early February 2019.

29. The Tribunal asked the applicant about the sponsor’s two overseas trips and asked her why she had not gone too. The applicant said that, with respect to his most recent trip, the sponsor had just retired, and she had wanted him to relax. She said that the sponsor went to Vietnam to visit her parents and that it was an opportunity for them to get to know him. She said that they liked him. She said that there were two reasons why she did not travel with him on this trip. First, it was because all her family members in Australia went on the trip and, if she had gone, there would have been no one to look after the home. The second reason she gave was because she was holding a Bridging A visa and she was afraid that if she went, she would not be able to return to Australia.

30. The sponsor gave oral evidence that he had been to Vietnam three times to see the applicant’s family but that the applicant had not gone with him. The sponsor’s movement records evidence that he has departed Australia on three occasions, with his first trip being in late December 2011 to mid-January 2012. The parties claim that they did not meet until 2014 so the Tribunal does not consider this first overseas trip to be relevant to the issue for determination in this case. The Tribunal has formed the view that the sponsor spoke in error in stating that he had visited the applicant’s family on that first trip. Alternatively, it may be that he visited the family of [Mr C], his former workmate. Notwithstanding, the sponsor was correct to recall that, on his first two trips, he and the applicant had not been married. (It being recalled that the parties married on 2 January 2016). The sponsor said that he thought that, at the time of the trip in 2015, the applicant had been working and that is why she had not travelled. He said that his last trip had been in 2018. He noted that they were married at that time. He said that they had planned to take a trip in 2018 but that the applicant had to cancel because her work was short staffed.

31. The fact that, since the inception of the claimed relationship, the sponsor has travelled twice to Vietnam to see the applicant’s family and she has not travelled with him strikes the Tribunal as unusual. Notwithstanding, their reasons for this, while not strongly persuasive, are nevertheless plausible. Without more evidence pointing to the parties not being in a genuine and continuing spousal relationship, the Tribunal is of the view that the fact that the sponsor travelled to Vietnam twice without the applicant is not the reason, or a part of the reason, for the Tribunal to affirm the decision under review.

32. The Tribunal notes that the sponsor also gave oral evidence of another joint social activity that he and the applicant had undertaken, albeit a short-lived activity. He said that they had gone to the gym [together] for about a month. He said that he still goes but that the applicant has stopped going. The Tribunal accepts this oral evidence.

33. The Tribunal gives some weight to the evidence of the social and public recognition of the relationship. Overall, the Tribunal considers that it points to the applicant and the sponsor being in a spousal relationship both at the time of application and at the time of this decision.

    The nature of the persons’ commitment to each other

34. The duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the persons draw from each other, and whether the persons see the relationship as a long term one are relevant matters when considering the nature of the persons’ commitment to each other.

35. In this review, the applicant submitted a statutory declaration made by the sponsor on 20 May 2023 and a more detailed one made by her on 12 September 2023 where they each outline the inception and development of their relationship.

36. The parties have consistently claimed that they met through the applicant’s uncle, who is also the sponsor’s friend and former workmate: [Mr C]. At the hearing, the sponsor said that he first met the applicant on 9 September 2014. He said that, not long after meeting her, he developed feelings for her. He explained that they had gone to [a suburb] together; gone out to restaurants; had became very close and he had fallen in love. He said that he thought that there had been about three or four months of dating before they decided to marry. He said that he loved the applicant because she was good looking, he loved her ‘crazy’ sense of humour and he said that they understand each other well. Both parties told the Tribunal that they had married on 2 January 2016.

37. The Tribunal acknowledges the parties’ claim about the duration of their committed relationship throughout the years and gives weight to the evidence that, at the time of application on 7 March 2016, the parties had been married for a little over two months and that, at the time of this decision, they have been married for almost eight years.

38. With respect to the length of time during which the persons have lived together, the Tribunal accepts the applicant’s consistent evidence, given throughout the years, that they started living together after they had registered their marriage. The Tribunal gives weight to the evidence that, at the time of application on 7 March 2016, the parties had been living together for a little over two months and that, at the time of this decision, they have been living together for almost eight years.

39. The Tribunal questioned each party about their knowledge of the other (for instance the applicant’s place in the order of children in her family of origin; their closest friends and each person’s leisure interests) and their lives (including discussion of any problems the substantial age difference has caused them) and is satisfied that they both demonstrated knowledge of each other’s lives suggestive of a couple in a genuine and ongoing spousal relationship. 

1. With respect to the degree of companionship and emotional support that the persons draw from each other, they both outlined the care that they provide to the other. The applicant told the Tribunal that she was the only person who looks after the sponsor. She said that she wanted to stay in Australia to care for the sponsor. She said that she could not imagine how he would manage on his own. She said he had only one sister who lives far away. She said that she knew what the sponsor is capable of and that he needed her help. She said she felt very emotional thinking about how he would survive without her.    

2. In the sponsor’s words, ‘when she gets up in the morning, I bring her water and her clothes for work. When she gets sick, I care for her and vice versa’. He outlined how, in 2016, he had broken his ankle and had had two operations on his ankle. He said that the applicant had visited him every day. He also told the Tribunal that the applicant had even watched him inject himself with a blood thinner. He also noted that the applicant reminds him to take his medication. He said that he needed to take medication for cholesterol and high blood pressure every night and that, when he had been drinking, he could forget to take it.

3. The Tribunal accepts the parties’ oral evidence.

4. With respect to whether the persons see the relationship as a long term one, both parties gave credible oral evidence that they do see their relationship in these terms.

5. The applicant told the Tribunal that she had chosen the sponsor as the last man in her life. She said that she understood him and found him to be a good man. She said that she was happy with the sponsor. She said that she feels safe with him. She said that he supports her emotionally and financially and does whatever she wants, such as going to the shops or to the doctor. She explained that, after finishing her studies, she could have returned to Vietnam and found a good job there, but she chose to remain in Australia to be with the sponsor. She noted that they had been together for about seven and a half years, and she queried why their relationship would not continue. She said that her age ([age] years), she did not see any point in looking for another man.

6. The sponsor replied by stating that they had been married for almost eight years. He said that they get along well, were ‘pretty close’ and do not fight. He said that the applicant cares for him and that he loved her very much and that he didn’t want her to go back to Vietnam. He said he would be devastated if that happened. He said that he did not want the marriage to break down after nearly eight years.

7. With respect to any plans for the future, the applicant said that, so far, they had not been able to conceive a baby. She said that she wanted them to conceive the ‘natural way; no interference’. She said that she wanted her parents to have their first grandchild. The applicant also told the Tribunal that the sponsor had told her that, if she was successful in being granted the visa, they would travel together to visit her parents, whom she had not seen for eight years. She said that it was a real dilemma for her because she wants to see her parents, including her mother who has a number of health problems, but that she was afraid that if she travelled to Vietnam, she would not be allowed to return to Australia and in that case, she would not be able to care for her husband. The applicant was in tears while giving this evidence.

8. The sponsor similarly told the Tribunal ‘we plan to have a family. If it happens, it happens’. The Tribunal notes that the applicant looked particularly pained when the sponsor gave this evidence.

9. The Tribunal accepts the parties’ oral evidence.

10. The Tribunal gives weight to the evidence of the persons’ commitment to each other. In the Tribunal’s view, the evidence is suggestive of the parties being in a committed spousal relationship—both at the time of application and at the time of this decision.

11. Having reflected on the evidence and noting that the Tribunal found all persons who gave oral evidence at the hearing to be credible and that there was some documentary and photographic evidence in support of various claims, the Tribunal finds that both at the time of application and at the time of this decision, the applicant and the sponsor have had a mutual commitment to a shared life together as wife and husband.

    CONCLUSION

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

13. After considering all the evidence before it and for the reasons given with respect to the reg 1.15A(3) matters, the Tribunal is satisfied that, both at the time of application on 7 March 2016 and at the time of this decision, the applicant and the sponsor:

    ·had and have a mutual commitment to a shared life as wife and husband 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

    ·lived and live together as required by s 5F(2)(d)(i) of the Act.

14. Given these findings, the Tribunal is satisfied that, at the time the visa application was made and at the time of this decision, the parties were and are in a spousal relationship.

15. However, the spouse requirement in cl 820.211(2)(a)(i) is not the only requirement in cl 820.211(2) which must be satisfied at the time of application. The sponsorship requirements in cl 820.211(2)(a)(ii) and cl 820.211(2)(c) must also be satisfied, and, if the applicant was not the holder of a substantive visa at the time of application, then the requirements in cl 820.211(2)(d) must also be satisfied.

101.   The Tribunal has reviewed the record of responses for the application for the visa and the record of responses for sponsorship of the visa, which are both on the Department’s file. From the evidence before it, the Tribunal is satisfied that the applicant is sponsored by the sponsor and that cl 820.211(2)(c)(i) is met. There is no information before the Tribunal to suggest that the circumstances outlined in cl.820.211(2B) apply so the Tribunal finds that the sponsor is not prohibited by that subclause from being a sponsoring partner. Accordingly, the Tribunal finds that cl 820.211(2)(a)(ii) is met.

102.   The applicant’s movement records which are on the Tribunal’s file evidence that, on 20 May 2015, she was granted a Subclass 572 (Class TU) Student visa. She held this substantive visa upon applying for the Partner (Temporary) (Class UK) Subclass 820 visa on 7 March 2016. As she held a substantive visa at the time of application, the further requirements in cl 820.211(2)(d) need not be met.

1. The Tribunal finds that the applicant meets the time of application requirements in cl 820.211(2). As the applicant meets the requirements of cl 820.211(2), she also meets cl 820.211(1)(b). As both cl 820.211(1)(a) and (b) are met, cl 820.211(1) is met.

2. With respect to criteria to be satisfied at the time of decision, the Tribunal finds that the applicant continues to meet the requirements of cl 820.211(2) and so meets cl 820.221(1)(a).

105.   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.

DECISION

106.   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(1) of Schedule 2 to the Regulations; and

·cl 820.221(1)(a) of Schedule 2 to the Regulations.

Justine Clarke
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).