2008553 (Migration)
[2024] AATA 2749
•3 July 2024
2008553 (Migration) [2024] AATA 2749 (3 July 2024)
DECISION RECORD
DIVISION: Migration & Refugee Division
REPRESENTATIVE: Mr Bao Nhu Van Truong (MARN: 1677990)
CASE NUMBER: 2008553
MEMBER: Justine Clarke
DATE: 3 July 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the 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 03 July 2024 at 6:36pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – limited knowledge of partner’s personal circumstances – evidence of events subsequent to the visa application – allegations made by an anonymous source – financial aspects – nature of the household – social aspects – nature of the commitment – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 359AA, 376
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 309.211, 309.221
CASES
El Jejieh v Minister for Home Affairs (No 2) [2019] FCCA 840
He v MIBP [2017] FCAFC 206
Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139Any 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
This is an application for review of a decision made on 20 April 2020 by a delegate of the Minister for Home Affairs to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (the Act).
On 6 May 2019, the visa applicant, who is a national of Vietnam, applied for the visa based on his relationship with his sponsor, the review applicant.
At the time the visa applicant applied for the visa, he was [age] years of age, and the review applicant was [age] years of age. At the time of this decision, the visa applicant is [age] years of age, and the review applicant is [age] years of age.
At the time that the visa applicant 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.
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 6 May 2019, the visa applicant satisfied the definition of spouse under s 5F of the Act. The delegate expressed the view that insufficient evidence had been submitted in support of the claimed partner relationship. In particular, the delegate was critical of some of the visa applicant’s answers given at the Departmental telephone interview on 20 March 2020. The delegate relevantly stated:
You claim that you have been in regular communication with your sponsor via web- based communication apps during periods of separation. Given the level of claimed contact, it could reasonably be expected that you and your sponsor could demonstrate a substantial knowledge of each other’s personal circumstances.
However, during the interview, you demonstrated significant gaps in your knowledge of your sponsor. I note in particular:
·You claimed that you[r] sponsor has two siblings name[d] [Ms A] and [Ms B]. However, your sponsor did not declare any siblings by these names in this application.
·You did not know where your sponsor studies English.
·You did not know where your sponsor previously studied in Ho Chi Minh City, Vietnam.
·You did not know which market your sponsor usually frequents.
·You did not know how your sponsor’s mother passed away.
·You stated that your sponsor has vestibular disorder and cerebral anaemia, however you did not know whether she takes any medicine.
·You did not know your sponsor’s previous spouse’s name or age.
I am not satisfied of the knowledge you and your sponsor have of each other’s personal circumstances, or the degree of companionship and emotional support that you draw from each other. I give this limited knowledge significant weight.
The delegate made no findings in respect of the time of decision criterion in cl 309.221.
On 21 May 2020, the review applicant applied to the Tribunal for the review of the delegate’s refusal decision. The review applicant was represented in relation to the review.
On 12 June 2024, the review applicant appeared in person before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence in person from eight other persons—various family members and friends. Full details of these witnesses are given later in these reasons under the heading ‘the social aspects of the relationship’. The hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The representative also attended the hearing in person. The visa applicant was available to give oral evidence by telephone from Vietnam. However, by the time the Tribunal had heard from the review applicant and the eight witnesses, there was insufficient time to hear the visa applicant’s oral evidence. The presiding Member informed the review applicant that the Tribunal would consider all the evidence before it and, if necessary, it would hold a further hearing to hear from the visa applicant. At the conclusion of the hearing, the Tribunal granted the applicant further time, until 26 June 2024, to provide further documentary evidence in support of the case.
Further evidence was submitted on 15 June 2024, including a further statutory declaration made by the review applicant that day.
Having considered all the evidence before it, the Tribunal considered that, very unusually, it did not need to hear from the visa applicant directly but rather that it should decide the review in the review applicant’s favour based on the material before it.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue for determination in this matter is whether, at the time of application on 6 May 2019, the visa applicant was the spouse of the review applicant. As has been explained, the delegate was not so satisfied.
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.
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
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.
The visa applicant claims to be the spouse of the review applicant who is an Australian permanent resident. At the hearing, the review applicant gave oral evidence that she is an Australian permanent resident. The Tribunal accepts her evidence. From the evidence before it, the Tribunal is satisfied that the review applicant is an Australian permanent resident.
‘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).
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?
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 Vietnam and the marriage was registered [in] December 2018. A copy of the marriage certificate (including the English translation) is on the Department’s file. The delegate did not express any concern that the parties were not married to each other under a marriage that is valid for the purposes of the Act, as required by s 5F(2)(a). 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?
In order to make the requisite findings about the reg 1.15(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 non-disclosure certificate said to be made pursuant to s 376 of the Act
The Tribunal’s file contains a non-disclosure certificate said to be made pursuant to s 376 of the Act. At the hearing, the Tribunal provided the review applicant with a copy of this certificate.
This certificate, which is dated 22 October 2020, relevantly states:
Public Interest folios
I notify the Administrative Appeals Tribunal that s 376(1)(a) applies to:
The source information received in the Border Watch Allegations and Referral Team via web form on Wednesday, 2 September 2020 of Reference number:
[number]/TRIM reference number [number], and certify that disclosure of this material would be contrary to the public interest because it may:
(a) disclose, or enable a person to ascertain the existence or identity of, a confidential source of information[.]
With respect to this certificate, the Tribunal must:
·assess the validity of the certificate;
·accord procedural fairness, including disclosing the existence of the certificate to the review applicant, providing her with a copy of the certificate and affording her with an opportunity to make submissions about the validity or otherwise of the certificate because if the Tribunal determines that the certificate is not valid, it may disclose the documents or information to the review applicant;
·if the Tribunal considers the certificate to be validly made, afford the review applicant an opportunity to seek a favourable exercise of the discretion in s 376(3)(b), that is, the Tribunal’s discretion to disclose, to the review applicant, the information subject to the s 376 certificate; and
·comply with the procedural code, including complying with s 359A or s 359AA, that is, giving the review applicant clear particulars of information that is adverse to the case and inviting her to comment on or respond to the information.
The Tribunal’s first task is to assess validity. The certificate contains both a date and a signature by the delegate, as required by El Jejieh v Minister for Home Affairs (No 2) [2019] FCCA 840. At the hearing, the Tribunal informed the applicant that the Tribunal considers that the certificate was validly made and informed her that she was entitled to make submissions about the validity of the certificate and also to make submissions requesting a favourable exercise of the Tribunal’s discretion to disclose the information. The review applicant did not seek to make such submissions.
The Tribunal also explained to the review applicant that it intended to use the procedure set out in s 359AA of the Act to provide her with the gist of the protected information. The Tribunal explained that, in conducting the review, the Tribunal is required by the Act to invite her to comment on or respond to certain information which the Tribunal considers would, subject to her comments or response, be the reason, or a part of the reason, for affirming the decision under review.
The Tribunal said the following.
As you are already aware, the Tribunal’s file contains adverse information. Allegations:
The Tribunal’s file contains a record, obtained from the Department, of allegations made against you by an anonymous source on 2 September 2020.
The Tribunal has not made up its mind about the information. The particulars of the information are that:
· The relationship between you and the visa applicant is contrived so that he may achieve a positive migration outcome.
oThe source also alleged that the phone contact between you and the visa applicant was not for the purpose of speaking to each other but rather only for the purpose of having evidence that could be printed out for the Department.
· You have been or will be paid money—$100,000—to sponsor the visa applicant.
· During your claimed relationship with the visa applicant, you had been in a relationship with someone else.
This information is relevant to the review for the following reasons.
Clause 820.211(2)(a)(i) requires that, at the time of application on 6 May 2019, the visa applicant was the spouse or de facto partner of a relevant person, here an Australian permanent resident.
To meet the definition of ‘spouse’ under s 5F of the Act, the visa applicant must be in a ‘married relationship’ with you. Two of the four requirements for a ‘married relationship’, for the purposes of the Act, are that:
·the relationship is genuine and continuing (s 5F(2)(c)); and
·the two of you have a mutual commitment to a shared life as husband and wife to the exclusion of all others (s 5F(2)(b)).
Further, cl 820.221 requires that, at the time of my decision, you continue to meet the applicable requirement—here cl.820.211(2)—unless the relationship has ceased, and certain circumstances exist.
If the Tribunal relies on the information that has been particularised above in making its decision, it may find that you and the visa applicant have contrived the relationship for migration purposes. This would cause the Tribunal to conclude that you do not meet
cl 820.211 and/or cl 820.221. The consequence of the Tribunal relying on this information is that it would be the reason, or part of the reason, for the Tribunal to affirm the decision under review not to grant the visa applicant a Partner (Provisional) (Class UF) visa.
Now, I would like to invite you, [the review applicant], to comment on or respond to the information. I am obliged to inform you that you may seek additional time to comment on or respond to the information. Would you like additional time? How much?
The review applicant said that she wished to respond immediately. When asked whether there was any truth to the allegation, the review applicant said that they were ‘absolutely untrue’. She said that she wanted to explain about ‘the accuser’ who made the allegation. She said that she did not know for certain who made the allegation, but she suspected that it was someone that previously she had been friends with—a man named ‘[Mr C]’. The Tribunal notes that the review applicant had previously detailed her friendship with ‘[Mr C]’ and how, in August 2020, she had sought an intervention order in respect of him. The review applicant gave oral evidence that was consistent with what she had declared in her statutory declaration of 29 May 2023 (on the Tribunal’s file). The representative requested the Tribunal to ask the review applicant whether she thought someone else may have made the allegation. The review applicant responded ‘no’ and that she thought that it was [Mr C].
In her statutory declaration of 15 June 2024, filed after the hearing, the review applicant again refuted the truth of the allegation. She also explained that she had also suspected that [Mr D] may have made the allegation but she said that [Mr D]’s willingness to provide a statutory declaration and to give oral evidence in support of the relationship had dispelled her suspicion that it may have been him.
The review applicant also submitted a copy of the final intervention order that she had received in respect of [Mr C] , made on 7 January 2022 as well as other documents related to her complaint against ‘[Mr C]’. One of the documents is an accredited translation of a series of text messages sent on 27 August. Another of the documents is a signed and stamped Undertaking of Bail document. This document is not terribly clear, but it is dated either 27 or 31 August 2020 and appears to concern ‘[Mr C]’.
It will be recalled that the anonymous allegation was made on 2 September 2020—days after the review applicant had reported [Mr C] to the police.
The Tribunal found the review applicant to be credible in her response and, as will be explained, in all her oral evidence. The Tribunal gives the anonymous allegation no weight. The Tribunal has formed the view that the source—who remains unknown—made the allegation out of malice.
The Tribunal finds that the adverse information, particularised above and protected from disclosure by the s 376 certificate, is not the reason, or a part of the reason to affirm the decision under review. The Tribunal gives no weight to the information.
The Tribunal considers that it has complied with its obligations in respect of this certificate and the allegation.
Regulation 1.15A(3) matters
The financial aspects of the relationship
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 to consider when assessing the financial aspects of the relationship.
In his application for the visa, the visa applicant declared:
Where we can share money we do. In events of dinners or outings we share the load and always treat one another with presents and food. At times [the review applicant] sends money to me to use even when I don’t need it (In our culture it is a sign of trust and respect to do so). As for formal financial sharing there is none of yet since we are living apart but once I am able to move to Australia we plan to share all responsibilities between one another such as paying the bills, sharing bank accounts etc.
When the matter was before the delegate, the delegate made the following comments in the primary decision about the financial aspects of the relationship.
You have provided invoices for restaurant meals, covering the period between August 2017 and November 2018. Two of the receipts provided were not dated. All restaurant invoices were not issued in the names of you or your sponsor. As such, I give this evidence little weight.
The delegate concluded:
As you and your sponsor live in separate countries, I recognise the difficulty of combining financial affairs, joint ownership of assets and pooling of financial resources. I therefore give little weight to this factor in my consideration of this application.
At the hearing, the Tribunal asked the review applicant whether she was working, and she replied ‘no’. The Tribunal asked her about her occupation when she had been working, and she replied that she had worked at a [specified business] but had not done such work since 2015. The Tribunal then noted that in her statutory declaration of 29 May 2023, she had declared that she was a carer. She responded by saying that she continues to provide care to [Mr E]. The Tribunal also noted to her that in that statutory declaration she had said that she worked casually as a [Occupation 1]. The review applicant responded by saying that it was ‘only sometimes’.
In the review applicant’s statutory declaration of 15 June 2024, filed after the hearing, she sought to better explain her employment history and her oral evidence given about it at the hearing. The Tribunal accepts the review applicant’s explanation. The Tribunal finds that the review applicant’s oral evidence at the hearing about her employment is not the reason, or a part of the reason to affirm the decision under review.
The review applicant told the Tribunal that the visa applicant worked as an [Occupation 2] and that he worked with his friend [Mr F]. The Tribunal notes that the visa applicant has declared that this is his form of employment. For example, see his statutory declaration of 25 May 2023.
In this review, the review applicant submitted copies of seven money transfers (six dated various dates in 2022 and one dated January 2023). These money transfers evidence money sent in her name to the visa applicant.
The review applicant told the Tribunal that she usually sent four million Vietnamese Dong to the visa applicant every month and that this money was then transferred to her father in Vietnam. The Tribunal then asked her whether there was a reason why the money was not sent directly to her father. The review applicant responded that it was because her father was elderly and does not know how to withdraw cash.
Again, after the hearing, the review applicant sought to provide a clearer explanation of her oral evidence given at the hearing about sending money to Vietnam in her statutory declaration of 15 June 2024. She also explained, in this statutory declaration, a claim she had made in her statutory declaration of 29 May 2023 about sending money to Vietnam for the purchase of land there. The Tribunal notes that the review applicant did not submit any corroborating documents about the purchase of land in Vietnam. It is unclear to the Tribunal whether there is joint ownership of real estate in Vietnam. The Tribunal considers that it cannot make a finding in this regard.
The Tribunal gives some weight to the evidence that some money has been transferred from the review applicant to the visa applicant.
No other clear documentary evidence of the financial aspects of the relationship was submitted in the review.
The Tribunal finds that there is no evidence before the Tribunal of any joint ownership of real estate or other major assets, any joint liabilities or whether one person in the relationship owes any legal obligation in respect of the other. There is also no clear evidence of any pooling of financial resources or any sharing of day-to-day household expenses. Indeed, the Tribunal considers that there is minimal evidence of the financial aspects of the relationship. This is unsurprising given that the review applicant and the visa applicant live in different countries. The Tribunal considers that there is insufficient evidence of the financial aspects of the relationship for the Tribunal to be able to say that 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
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 to be considered when assessing the nature of the household.
There is no evidence that either the review applicant or the visa applicant has any children. Accordingly, the Tribunal finds that there is no joint responsibility for the care and support of children.
With respect to the living arrangements of the persons and any sharing of the responsibility for housework, the Tribunal notes the visa applicant’s statement in his application for the visa that
We do not currently live together but when she visits me and stays together at my house/her families house or wherever we are travelling to, it is always a fun and exciting time. We share household duties such as cooking and cleaning when necessary.
When the matter was before the delegate, the delegate made the following comments in the primary decision about the nature of the household.
Hotel receipts in the joint names of you and your sponsor have also been submitted with this application indicating that you and your sponsor rented a hotel room in Da Nang, Vietnam in August 2018 and in Ho Chi Minh City, Vietnam in November 2018.
…
At interview, you claimed that you and your sponsor stayed at your sponsor’s brother’s house in Ho Chi Ming City, Vietnam. However there is no evidence to support your claim. Therefore I give no weight …
…
As you and your sponsor live in separate countries and have spent a limited period of time in the company of one another, I recognise the difficulty of demonstrating that the nature of your household is that of two people in a genuine relationship.
Therefore, I give little weight to this factor in my consideration of this application.
The copy of the Department’s file that was provided to the Tribunal does not contain copies of the hotel receipts that the delegate referred to. The delegate had given little weight to those receipts because ‘there is no evidence that you and your sponsor shared the responsibilities of the household during the specified dates’. The Tribunal takes a different view to the delegate. Even though the Tribunal has not had the benefit of viewing these hotel receipts, the Tribunal gives some weight to the fact that such evidence had been submitted.
The Tribunal notes that in the via applicant’s statutory declaration of 25 May 2023 and in the review applicant’s statutory declaration of 29 May 2023 they each detailed various living arrangements when the review applicant had been visiting Vietnam.
The Tribunal notes that there is some third-party evidence to corroborate some of these claims. In the Form 888 statutory declaration of [Mr D] of an illegible date (possibly 2019?), which was before the delegate, [Mr D] declared:
I travelled to Vietnam soon after [they met?] due to personal reasons and met [the visa applicant] and [the review applicant] there. We travelled to places and enjoyed nice food together at restaurants.
Later, in his statutory declaration of 15 May 2023, [Mr D] declared that, in February 2022, he had travelled with the review applicant to Vietnam and that he had stayed with the parties at various named places.
[Mr D] also gave oral evidence at the hearing about these matters, saying that he had witnessed the start of the relationship and that he had invited the couple to stay with his family in Vietnam and that they had stayed for a few days.
The Tribunal considers that the evidence of the nature of the household is understandably limited given that the review applicant and the visa applicant live in different countries. Notwithstanding, the evidence which is available about the times when the parties have been together in the same country is suggestive of a spousal relationship, both at the time of application and at the time of this decision. The Tribunal gives some weight to this evidence.
The social aspects of the relationship
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 to be considered in determining the social aspects of the relationship.
In the primary decision, the delegate noted and gave some weight to the boarding passes evidencing joint travel, photographs from the wedding ceremony and reception—which had been attended by both families, photographs of other joint activities and the statutory declarations from two of the review applicant’s friends. However, the delegate had concluded:
While you and your sponsor have provided some evidence to demonstrate the social aspects of your relationship, it is not commensurate of a genuine and continuing relationship between you and your sponsor. I therefore am not satisfied that you and your sponsor present themselves to family and friends as being in a committed partner relationship, or are regarded by people as such.
The Tribunal considers that, in this review, it has far greater evidence of the claimed social aspects of the relationship than what had been before the delegate. As has been noted, eight witnesses attended the hearing in person to give oral evidence in support of the relationship. Also, voluminous photographic evidence was submitted as well as more boarding passes and some printouts from each person’s social media.
With respect to whether the persons represent themselves to other people as being married to each other, at the hearing, the Tribunal asked the review applicant whether she had met any of the visa applicant’s siblings. She responded that she had met some. The Tribunal also asked her whether the visa applicant had met any of her siblings. She replied that the visa applicant had met her ‘third brother’, ‘fourth sister’ as well as one younger brother.
As was the case with other matters upon which she gave oral evidence at the hearing, after the hearing the review applicant sought to clarify her oral evidence in this regard in her statutory declaration of 15 June 2024.
Importantly, she also sought to address one of the concerns that had been expressed by the delegate in the primary decision regarding her siblings. The delegate had expressed concern
that, at the telephone interview, the visa applicant had claimed that the review applicant has two siblings named [Ms A] and [Ms B] yet the review applicant had not declared siblings with these names in the application. The delegate sought to explain this apparent discrepancy. The Tribunal accepts the review applicant’s explanation. The fact that the visa applicant named these two people as being the review applicant’s siblings in his telephone interview, yet the review applicant had not named them in the application is not the reason, or part of the reason, for the Tribunal to affirm the decision under review.
The Tribunal notes that when the matter had been before the delegate, the visa applicant had submitted the following witness statements and statutory declarations, for which the delegate had given some weight.
·Form 888 statutory declaration of [Ms G] (who described the review applicant as her best friend and next-door neighbour) made on 5 May 2019; and
·Form 888 statutory declaration of [Mr D] (the review applicant’s friend through her late husband) made on [date illegible – possibly 2019?].
In the primary decision, the delegate stated the following about this evidence.
You and your sponsor provided statutory declarations from two of your sponsor’s friends. The declaring individuals claim that they have met both you and your sponsor and have seen you and your sponsor together. I give some weight to this evidence that a level of social recognition of the relationship exists.
In this review, the Tribunal takes a similar view to the delegate about this evidence. The Tribunal gives some weight to this evidence.
The parties also submitted the following statutory declarations to the Tribunal.
·Statutory declaration of [Ms H] (the review applicant’s friend) made on 11 May 2023.
·Statutory declaration of [Mr D] (a friend of the review applicant’s former husband) made on 15 May 2023.
·Statutory declaration of [Ms I] (the visa applicant’s sister) made on 21 May 2023.
·Statutory declaration of [Ms J] (the visa applicant’s aunt) made on 22 May 2023.
Each of these four people also attended the hearing in person to give oral evidence.
As has already been noted, eight witnesses attended the Tribunal in person to give oral evidence in support of the claimed partner relationship. In addition to the four witnesses listed above, the Tribunal also heard from:
·[Mr K] (the review applicant’s cousin);
·[Ms L] (the review applicant’s friend);
·[Mr M] (the visa applicant’s brother-in-law); and
·[Ms N] (the visa applicant’s cousin).
The voluminous photographic evidence and the evidence provided in the various statutory declarations and by the witnesses at the hearing is that the review applicant and the visa applicant have represented themselves to various family members and friends as being married and committed to each other. The Tribunal gives great weight to this evidence. The Tribunal finds that the persons represent themselves to other people as being married to each other.
The Tribunal notes that it asked the eight witnesses whether they were aware of the marriage and for their opinion about the nature of the relationship. The Tribunal found that the witnesses’ reasons for considering the relationship to be genuine were well considered. The Tribunal found the witnesses to be credible and gives great weight to their evidence. The Tribunal finds that the persons’ friends and family members are of the opinion that they are in a genuine and continuing relationship.
With respect to any basis on which the persons plan and undertake joint social activities, the Tribunal notes the visa applicant’s statement in his application for the visa that the parties ‘love to travel together and always have good conversation over a nice dinner’. The visa applicant’s statutory declaration of 25 May 2023 and the review applicant’s statutory declaration of 29 May 2023 both detail a number of joint social activities when the review applicant has visited the visa applicant in Vietnam. The parties’ consistent claim that they have holidayed together and socialised with others over meals is corroborated by photographic evidence and the evidence of various witnesses. The Tribunal gives great weight to this evidence. The Tribunal finds that, when the parties have been together in the same country, they have planned and undertaken a number of joint social activities.
The Tribunal gives great weight to the evidence of the social and public recognition of the relationship. The Tribunal considers that this evidence of the social aspects of the relationship 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 persons’ commitment to each other
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 their relationship as long-term are all matters to be considered in determining the nature of the persons’ commitment to each other.
The review applicant’s and the visa applicant’s consistent claim—in the visa application, each person’s undated, unsigned relationship statement on the Department’s file and in the visa applicant’s statutory declaration made on 25 May 2023 and the review applicant’s statutory declaration made on 29 May 2023 which were both filed in this review—is that they met by chance on 19 August 2017 when they were both dining with separate groups at a restaurant in Da Nang, Vietnam. While some may consider such a meeting as improbable, it is not implausible. They claim to have exchanged phone numbers and met up again for breakfast the next day before commencing a mainly online friendship and then relationship. In the application for the visa, the visa applicant claimed that they committed to a shared life together to the exclusion of all others on 20 July 2018 (when the review applicant had returned to Vietnam). Their consistent claim is that they had their ‘wedding’ on 15 November 2018 (a subsequent trip to Vietnam for the review applicant) and signed their marriage certificate [in] December 2018.
At the hearing, the Tribunal noted to the review applicant that her previous husband had been 41 years older than her and that the visa applicant was 10 years younger than her, and the Tribunal asked her whether the age difference with her current husband had caused any problems. She replied ‘no’. The Tribunal also asked whether any family members or friends
had expressed any concern about the age difference. She replied that there had been no comment. The Tribunal accepts the review applicant’s oral evidence.
Based on all the evidence before the Tribunal, the Tribunal accepts the parties’ consistent claim as to the inception and development of their partner relationship. Accordingly, at the time that the visa applicant applied for the visa on 6 May 2019, they had been in a committed relationship for almost a year and had been married for around four months. At the time of this decision, they have been married for five and a half years. The Tribunal gives weight to the evidence of the duration of the relationship.
The Tribunal considers that it is difficult to determine the exact length of time during which the persons have lived together. However, based on the evidence, the Tribunal accepts that they have lived together when the review applicant has visited the visa applicant in Vietnam.
With respect to the degree of companionship and emotional support that the persons draw from each other, in his application for the visa, the visa applicant declared, ‘[w]hen she returns to Australia we grow lonely and miss each other immensely. Most of the time spent apart includes daily calls just to hear each other’s voices and talk to each other’.
The delegate made the following comments about the evidence in the primary decision.
It is claimed that you and your sponsor commenced and maintained contact since August 2017. You have provided evidence of this including selected screenshots of web-based communication apps that cover the period between July 2018 to September 2018, and between February 2019 and March 2019. There were also call records dated between February and March, however no year was shown. Whilst it appears that you and your sponsor communicated regularly between these periods, the majority of the evidence of contact is undated. Therefore I cannot be certain of when you and your sponsor exchanged these messages. In addition, the content of you and your sponsor’s conversation provides little insight of how you and your sponsor’s relationship developed, particularly as you and your sponsor live apart.
I therefore give little weight to the web-based communication apps as evidence of contact between you and your sponsor.
The Tribunal notes that the copy of the Department’s file that was provided to the Tribunal does not contain copies of these particular records. Even though the Tribunal has not had the benefit of viewing these records, the Tribunal gives some weight to the fact that such evidence had been submitted.
In this review, the review applicant submitted a number of her phone bills which evidence regular phone calls to the visa applicant’s mobile number. For example, she submitted phone bills for the periods 17 July 2021 to 16 November 2021; 17 December 2021 to
16 March 2022 and 17 May 2022 to 16 September 2022.
The Tribunal gives weight to the documentary evidence submitted to the Department and to the Tribunal of the parties’ regular contact with each other when living in different countries. The Tribunal finds that these frequent and ongoing communications between the parties are indicative of their genuine commitment to the relationship.
With respect to whether the persons see their relationship as long-term, the Tribunal notes the parties’ claims made in their individual statutory declarations of May 2023. The Tribunal accepts their evidence that they would like to have children together—even though that may not be possible. The Tribunal finds that each person does see their relationship with the other as being for the long term.
The Tribunal places great weight on the evidence of the nature of the persons’ commitment to each other at all relevant times. The Tribunal considers that this evidence is suggestive of the parties being in a spousal relationship at all relevant times.
CONCLUSION
As stated above, the Tribunal is satisfied that the parties are validly married, as required by s 5F(2)(a) of the Act.
For the reasons given with respect to the reg 1.15A(3) matters, the Tribunal is satisfied that, at both the time of application and at the time of this decision, the visa applicant and the review 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.
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.
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 309 visa.
DECISION
The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the 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
1.15A 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).
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