2103759 (Migration)

[2024] AATA 3878

2103759 (Migration) [2024] AATA 3878 (2 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Duc Hung Bui (MARN: 9251794)

CASE NUMBER:  2103759

MEMBER:Glynis Bartley

DATE:2 September 2024

PLACE OF DECISION:  Sydney

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

·cl.309.221 of Schedule 2 to the Regulations

Statement made on 2 September 2024 at 3:32pm


CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – subclass 309 – parties validly married– review applicant has the capacity to make decisions about the relationship with the visa applicant  –  parties intend to pool their financial resources and share day-to-day household expenses in the future – intend to establish a joint household in Sydney – parties provide one another with companionship and emotional support – parties are in a genuine spousal relationship  – decision under review remitted      

LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, r 1.15, Schedule 2, cls 309.211, 309.221

CASES
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

ISSUE

1. The issue in this review is whether the visa applicant [is] the spouse of his sponsor, [as] defined in s 5F of the Migration Act 1958 (the Act).

   APPLICATION FOR REVIEW

2. This is an application for review of a decision made 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 Act.

3. The visa applicant applied for the visa on 14 September 2020 on the basis of his relationship with his sponsor, the review applicant. At that time, 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.

4. The delegate refused to grant the visa on 5 February 2021 on the basis that the visa applicant did not meet cl.309.211(2) of the Regulations. The delegate was not satisfied that the visa applicant was the spouse of the review applicant, as defined in s 5F of the Act.

5. The review applicant applied to the Tribunal for review of the delegate’s decision on 24 March 2021.

6. The review applicant appeared before the Tribunal on 21 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s parents, and by telephone from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese language.

7. The review applicant was represented in relation to the review by her registered migration agent who attended the hearing.

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

   BACKGROUND

9. The review applicant is a [age]-year-old Australian citizen by grant. She was born in [a country] and is the eldest of five children. The review applicant has not declared any previous marriages or de facto relationships and does not have any children. The review applicant migrated to Australia when she was an infant with her parents, who were citizens of Vietnam. The review applicant’s younger siblings (three brothers and a sister) were born in Australia and live in Australia. The review applicant works [two] days per week at [a workplace].

10. The visa applicant is a [age]-year-old Vietnamese citizen. He has not declared any previous marriages or de facto relationships. The visa applicant’s father is deceased. His mother and five siblings (four brothers and one sister) live in Vietnam. The visa applicant works on his family’s rice farm.

11. The review applicant and the visa applicant (the parties) said in the application that they were introduced by a friend of the review applicant’s mother in April 2017. They began communicating online and first met in person in Vietnam on 17 April 2018. The parties celebrated their engagement in Vietnam on 26 April 2018. The visa applicant applied for a Subclass 300 (Prospective Marriage) visa on 1 June 2018, which was refused by the Department on 24 January 2019. The review applicant subsequently applied to the Tribunal for review of that decision. On 18 July 2019, the parties were married in Vietnam. A differently constituted Tribunal remitted the Subclass 300 visa application to the Department on 14 September 2020 after being notified of the parties’ marriage, in accordance with reg 2.08E(2B).

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. Prior to the hearing, the review applicant’s representative provided additional documents to the Tribunal including but not limited to the following: a statement from the review applicant, photographs, a letter from the review applicant’s employer, a copy of the contract for the review applicant’s apartment, dated 10 August 2020, documents related to the review applicant’s mortgage, communication records between the parties, money transfer receipts, and a copy of the parties’ marriage certificate.

13. In making my decision, I have had regard to the documents in the Department and Tribunal files and the oral evidence at the hearing.

14. The parties gave generally consistent oral evidence at the hearing regarding the circumstances in which they met and the development of their relationship. The discrepancies were relatively minor, and I placed little weight on them. The review applicant’s responses were tentative, and she presented as particularly anxious about the proceedings. She referred to prepared notes throughout the hearing and told me that she has problems with her memory. In response to questioning by the Tribunal, the review applicant said that she attended a special school during some of her primary school years and was in a supported class throughout her high school education.  She completed her Higher School Certificate and found supported [employment].

15. The review applicant is no longer in the paid workforce as her previous employer moved to another suburb and it was not practicable for her to travel there. The review applicant gave oral evidence that she cannot drive as she did not pass the test for her driver’s licence. The review applicant said she does not receive any income from Centrelink or NDIS support services. She does not regard herself as someone with a disability.

16. The review applicant’s parents confirmed that their daughter attended a special class during high school, and also during some of her primary school years. The review applicant’s father said they were told that their daughter has a developmental disability. Her wages at her previous employer [were] subsidised by Centrelink.

17. I accepted the oral evidence from the review applicant’s father that the review applicant has a developmental disability. Her presentation at the hearing was consistent with that diagnosis. Although the review applicant’s parents confirmed that she has had assessments in the past, including by a psychologist, no documents were provided to the Department or the Tribunal regarding her diagnosis or capacity. The review applicant’s mother said the assessments were conducted many years ago. It is unfortunate that neither the Department nor the Tribunal were provided with any documents, including assessment reports, regarding the review applicant’s disability.

18. The review applicant appeared to fully comprehend the proceedings and presented as honest, albeit naïve, in her responses. I have placed weight on the review applicant’s oral evidence as I considered that she was sincere. I am satisfied that the oral evidence provided by the review applicant’s parents was truthful, although her mother in particular was prone to embellishment. It was readily apparent that the review applicant’s parents are heavily invested in the outcome of the application. It was difficult to assess the visa applicant’s credibility because he gave his oral evidence by telephone from Vietnam. He presented as more sophisticated than the review applicant. The visa applicant appeared to respond to questions about his personal circumstances and the parties’ relationship as best he could, and I am satisfied that he was being truthful.

19. In addition to the lack of information regarding the review applicant’s disability, there were other aspects of the evidence that were troubling in this matter, in particular:

    ·The review applicant has not travelled to Vietnam since July 2019. Consequently, the parties have not seen one another in person for more than five years.

    ·The parties have spent limited time with one another since they formed a relationship in 2018.

    ·The visa applicant did not appear to be fully aware of the review applicant’s disability, despite claims from the review applicant’s father that he had openly discussed his daughter’s disability with the visa applicant.

    ·The parties did not hold a celebration following their marriage in 2019. The review applicant acknowledged during the hearing that they registered their marriage to enable the visa applicant to apply for a Subclass 309 visa.

    ·The review applicant’s parents appear to be heavily invested in the outcome of the application. The review applicant’s mother gave oral evidence that they want someone to care for their daughter when they are no longer able to.

20. Despite these concerns, I am satisfied on the basis of the review applicant’s presentation and the oral evidence at the hearing that she has the capacity to make decisions about the relationship with the visa applicant. I am mindful that the review applicant lives alone and is not currently receiving any disability support services. She is maintaining voluntary employment and previously worked in paid supported employment. The review applicant managed to save a deposit and purchase her own home, although her parents provided some financial assistance.

21. I accepted that the review applicant has not travelled to Vietnam since July 2019 due to her limited financial means and the COVID-19 pandemic travel restrictions. She is currently relying on her parents to pay her mortgage and meet her day-to-day living expenses. Given the review applicant has not travelled overseas without her parents, it is likely that she would require family members to accompany her on future trips, which would greatly increase the expense. Importantly, the review applicant’s parents have met the visa applicant on two separate occasions and fully support the application. They presented as having their daughter’s best interests at heart and as being genuinely concerned about her welfare and interests. The review applicant’s parents described the visa applicant as gentle and caring towards their daughter. There was persuasive oral evidence at the hearing that the review applicant’s parents will provide considerable emotional and practical support to the couple after the visa applicant arrives in Australia.

22. While the review applicant presented as vulnerable due to her disability, there was no evidence to suggest that she is being exploited.

    Whether the parties are in a spouse or de facto relationship

23. 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. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

24. ‘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 of 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 of the specific matters 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?

25. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties provided a copy of their marriage certificate to the Department at the time of application. There was no evidence before me to cast doubt on the validity of the parties’ marriage in Vietnam on 1 October 2019, and it was not disputed by the delegate. Consequently, in the absence of any evidence to the contrary, I find that 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?

    Financial aspects of the relationship

26. The review applicant is not currently in paid employment and does not receive any income from Centrelink. She is fully supported by her parents, who pay her mortgage, food and other expenses. The review applicant owns her own apartment, subject to a mortgage, and has some savings. She works on a voluntary basis at [a workplace] two days per week. The visa applicant is employed on his family’s rice farm. His income is sufficient for his needs, but he does not have any savings. The review applicant has transferred some money to the visa applicant in the past, as evidenced by the receipts provided.

27. The parties demonstrated a reasonable knowledge of each other’s income and assets at the hearing. The review applicant was aware of the visa applicant’s employment but does not appear to have expressly discussed his financial circumstances with him. The visa applicant was aware of the review applicant’s voluntary employment, her mortgage and the financial support she is receiving from her parents, although he understated the monthly mortgage repayments.

28. The parties do not have any joint assets, joint debts or owe legal obligations to one another. This is not surprising given they live in different countries and have modest means. The review applicant lives alone in her apartment and the visa applicant lives in the family home with his mother and two of his siblings.

29. The parties have lived together for a few weeks in the visa applicant’s family home in Vietnam. I am not satisfied that they pooled their financial resources or shared day-to-day household expenses given the brief period involved.

30. The parties gave a similar account of their financial plans for the future. The visa applicant intends to find work so the parties can improve their financial circumstances. He gave oral evidence that he is not selective about the type of work he does. I am satisfied that the parties intend to pool their financial resources and share day-to-day household expenses in the future. 

31. I placed limited weight on this aspect of the parties’ relationship because they live in different countries.

    Nature of the household

32. I accepted the parties’ consistent oral evidence at the hearing that they lived together for a few weeks in Vietnam in 2019. The visa applicant’s mother and sister did most of the housework during the period that the parties’ cohabitated, including cooking and cleaning. The review applicant’s parents were in Vietnam at the time and stayed in a relatives’ home nearby. The parties do not have any joint responsibility for the care and support of children. Given the limited period involved, I am not satisfied that the parties have established a joint household.

33. I am satisfied on the basis of the parties’ oral evidence that they intend to establish a joint household in Sydney.

34. I placed minimal weight on this aspect of the parties’ relationship given they live in different countries and have spent a relatively brief period living together since they formed a relationship in 2018.

    Social aspects of the relationship

35. The parties held a celebration following their engagement in 2018 and family and friends from both sides attended that event, including the review applicant’s parents and younger brother who travelled with her from Australia. The review applicant’s parents provided statutory declarations to support the application and attested to the genuineness of the parties’ relationship. They also gave oral evidence at the hearing. I accepted that the review applicant’s parents have spent time with the parties in Vietnam and socialised with them. They firmly believe the parties’ are in a genuine and continuing relationship.

36. I accepted the review applicant’s oral evidence that she has told her close friends from church and some of her work colleagues about the parties’ relationship.

37. While the evidence to support the social aspects of the relationship is not extensive, I am satisfied on the basis of the photographs, witness statutory declarations and oral evidence at the hearing that the parties have undertaken joint social activities in Vietnam and represent themselves to other people as being married to each other. There is limited evidence that the parties’ relationship is recognised more broadly in the community, either in Vietnam or Australia.

    Nature of the persons’ commitment to each other

38. I find that the parties have now been in a committed relationship for seven years and married for more than six years. I placed substantial weight on the length of the parties’ relationship.

39. Although they decided to marry within a few days of meeting in person, the marriage was arranged by their families and the parties had communicated for 12 months via social media before they met in person in Vietnam in April 2018.

40. The review applicant demonstrated some knowledge about the visa applicant’s family and personal circumstances, although she relied on her notes to prompt her memory. The visa applicant was aware of the details of the review applicant’s family, including that the review applicant has one niece, and also that the review applicant’s sister is estranged from the family.

41. There was consistent and compelling evidence that the parties communicate on a daily basis, most commonly by electronic messaging. The review applicant is more comfortable communicating in English than Vietnamese, which poses a challenge for the parties. Communicating by SMS appears to be easier than voice or video calls, although they sometimes use these as well. While the tenor of the messages is relatively superficial, I considered that it is commensurate with the review applicant’s communication style and general level of functioning.

42. The parties gave similar oral evidence regarding their plans for their future life together in Australia. They intend to live together in the review applicant’s apartment and the visa applicant will look for work and contribute to the review applicant’s mortgage. The parties hope to have children together, although they understand that this may not be possible due to their ages. There was a discrepancy in their evidence regarding whether or not they were trying to conceive a child while the review applicant was in Vietnam in 2019. I did not put any weight on that inconsistency as I considered that there may have been some confusion about the relevant questions.

1. While the parties have not seen another for an extended period, I accepted that this is explicable by the COVID-19 travel restrictions and their limited financial means. The review applicant is not currently working, and the visa applicant has no savings. The review applicant’s parents have travelled with her to Vietnam in the past. The cost of travel is significantly higher if the review applicant needs to be accompanied on future trips. The parties have managed to maintain regular contact despite their lengthy physical separation.

2. I am persuaded that the parties provide one another with companionship and emotional support. They have made plans for their future life together in Australia and wish to be reunited.

3. Despite my concerns outlined above, I am satisfied that the parties have a long-term commitment to each other. This supports a finding that the parties are in a genuine and continuing spousal relationship.

   Conclusions

4. Given the above findings, I am satisfied that at the time of the visa application and at the time of this decision the parties were in, and continue to be in, a genuine and continuing relationship and have a mutual commitment to a shared life as husband and wife to the exclusion of all others. They have lived together for a brief period in Vietnam in 2019 and intend to resume that arrangement in Australia. Therefore, the parties do not live separately and apart on a permanent basis.

5. I am satisfied that the requirements of s 5F(2) are met at the time the visa application was made and at the time of this decision. Therefore, the visa applicant meets cl.309.211 and cl.309.221.

6. 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

7. 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

   ·cl.309.221 of Schedule 2 to the Regulations

   Glynis Bartley
   Member

   
   

   ATTACHMENT  - Extract from Migration Regulations 1994

   1.15ASpouse

   (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

   (2)If the Minister is considering an application for:

   (a)a Partner (Migrant) (Class BC) visa; or

   (b)a Partner (Provisional) (Class UF) visa; or

   (c)a Partner (Residence) (Class BS) visa; or

   (d)a Partner (Temporary) (Class UK) visa;

   the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

   (3)The matters for subregulation (2) are:

   (a)the financial aspects of the relationship, including:

   (i)       any joint ownership of real estate or other major assets; and

   (ii)      any joint liabilities; and

   (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

   (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

   (v)     the basis of any sharing of day‑to‑day household expenses; and

   (b)the nature of the household, including:

   (i)       any joint responsibility for the care and support of children; and

   (ii)      the living arrangements of the persons; and

   (iii)     any sharing of the responsibility for housework; and

   (c)the social aspects of the relationship, including:

   (i)       whether the persons represent themselves to other people as being married to each other; and

   (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

   (iii)     any basis on which the persons plan and undertake joint social activities; and

   (d)the nature of the persons’ commitment to each other, including:

   (i)       the duration of the relationship; and

   (ii)      the length of time during which the persons have lived together; and

   (iii)     the degree of companionship and emotional support that the persons draw from each other; and

   (iv)    whether the persons see the relationship as a long‑term one.

   (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).