Akker (Migration)

Akker (Migration) [2020] AATA 482 (17 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Kees Raymond Akker
VISA APPLICANTS:  Mrs Thu Hong Vo
Mr Duc Nguyen Tran
CASE NUMBER:  1822252
DIBP REFERENCE(S):  BCC2017/3645058
MEMBER:Steven Griffiths
DATE:17 February 2020
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl.309.211 of Schedule 2 to the Regulations
·cl.309.221 of Schedule 2 to the Regulations

Statement made on 17 February 2020 at 11:13am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – separately managed finances – jointly contribute to expenses – joint responsibility for young adult children – initially met via a dating website – level of commitment – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls, 309.211, 309.221
CASES
He v MIBP [2017] FCAFC 206
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 10 July 2018 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).
The first named visa applicant (the visa applicant), Mrs. Thu Hong Vo, applied for the visa on 5 October 2017 on the basis of their relationship with their sponsor, the review applicant, Mrs. Kees Raymond Akker. 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. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211(2) because the delegate was not satisfied the applicant was the spouse, as defined in s.5F of the Act, of the sponsor.
The sponsor applicant appeared before the Tribunal on 14 February 2020 to give evidence, respond to questions and present arguments. The Tribunal also received oral evidence from the visa applicant, the secondary visa applicant and two long term friends of the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The review applicant was represented by his registered migration agent, who attended the hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has taken into consideration all the evidence in the Department of Immigration file, the Tribunal file including additional information provided by the applicants and the evidence from the Tribunal hearing.
ISSUE
The issue in the present case is whether the applicant is the spouse, as defined in s.5F of the Act, of the sponsor.
BACKGOUND OF THE EVIDENCE
Mrs. Vo was born in Ho Chi Minh City, Vietnam, in 1973. Her parents, born 1944 & 1949, and a brother and 3 sisters, born 1970 to 1977, all live in Vietnam other than the youngest sister who was a resident of Australia and now lives in Singapore. She married in 1996, with a son born 1998, and divorced in 2003. She married in April 2014, with a Partner 309 visa application lodged, this being withdrawn 10/9/15 as the relationship had broken down, and divorced February 2017, with no children. Her son, the secondary visa applicant, has been a student in Australia and remains working in Australia on a graduate visa.
Mr. Akker was born in Australia in 1964. His parents are deceased and he has a sister, born 1962. He has a daughter and son, twins born in 2001. He married in 2003 and divorced 2016. He lived in New Zealand from November 2015 to April 2017 for work.
INFORMATION TO THE TRIBUNAL
Since the Department made a decision the sponsor has provided further information to the Tribunal including:-
Form 888 Statement, Meredith Miller, friend of sponsor, 20/1/20
Form 888 Statement, Shayne Longmire, friend of sponsor, 22/1/20
Form 888 Statement, Stephen Waddington, friend of sponsor, 22/1/20
Form 888 Statement, Suong Thi Thu Vo, sister of applicant, 5/2/20
Form 888 Statement, Yvonne Webley, sister of sponsor, 19/1/20
Migration Agent Submissions, 10/2/20
Applicant Certificate of Profession, 2016
Emails and messages between Millers, friend of sponsor, and applicant, 23/1/18 to 31/1/20
Photos of mother and child who are friends of parties
Vietnam Hotel booking, 23/2/19 to 28/2/19
Secondary applicant Bachelor of Hospitality Management graduation, 14/11/19
Secondary applicant 485 Graduate visa, 4/1/20 to 4/1/22
Parties tickets for performance, Vietnam, 23/2/19
Joint names various accommodation, flight details and purchases
Text messages between sponsor and secondary applicant
Sponsor Wages summary for year ending 30/6/19
Sponsor pay slips 1/4/19, 3/6/19 & 13/1/20
Sponsor Telephone plan details
Sponsor hotel in Vietnam booking, February 2019
29 photos of parties in Vietnam, 4 with family / friends
Statement by niece of applicant confirming applicant cared for her in Sydney 16/5/18 to 30/5/18
Applicant declaration, 8/2/20
Is the sponsor an Australia citizen, an Australia permanent resident or an eligible New Zealand citizen?
Clauses 309.211(2) and 309.221 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. The Tribunal accepts the sponsor is an Australian Citizen by birth.
Whether the parties are in a spouse or de facto relationship
‘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 parties’ household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
At the time the visa application was made the visa applicant provided evidence of being married to the sponsor with a Commonwealth of Australia Certificate of Marriage dated 19 August 2017.
The Tribunal has regard to the document and finds that the parties are married to each other at the time of the visa application and this decision, with the marriage valid for the purposes of the Act as required by s.5F(2)(a).
CLAIMS AND FINDINGS
Financial aspects of the relationship that must be considered include:-
(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 expense
The Tribunal determines, from the documented and oral evidence provided, at the time of the visa application, no real estate or other major assets was or is owned jointly by the parties.
The Tribunal determines, from the oral evidence provided, that at the time of the visa application and this decision, no joint liabilities were or are held by the parties.
The Tribunal determines, from the oral evidence provided, that at the time of the visa application and this decision, none of the parties has a legal obligation to the other.
The Tribunal notes the sponsor works for mine operators in remote South Australia.
The Tribunal notes the applicant is trained cook and has most recently worked in property investment in Vietnam.
The Tribunal accepts the oral evidence of the parties, confirmed independently, of their finances being managed separately, and will be until the parties are living together, noting costs are shared when they are together in Vietnam and Australia with both parties contributing to accommodation, meals and other purchases, and determines these payments to represent the pooling of financial resources and the sharing of day-to-day household expenses.
The Tribunal accepts the oral evidence of the parties, confirmed independently, of the visa applicant being responsible for the costs of the secondary applicant while he has been a student in Australia.
The Tribunal accepts the oral evidence of the parties, confirmed independently, of the sponsor being responsible for the costs of an investment property in Quorn, in regional South Australia, in which relatives of the sponsor’s first wife lives, and in supporting his children, who are starting their working lives in regional South Australia.
The Tribunal accepts the parties live in different countries and attaches little weight to this issue.
Nature of the household aspects that must be considered include:-
(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
The Tribunal accepts the documented, photographic and oral evidence of the visa applicant has a son, born 1998, who is the secondary visa applicant, noting the evidence of regular contact between the sponsor and secondary applicant and determines, at the time of application and this decision, joint responsibility has been demonstrated by the visa applicant and sponsor for the care and support of the son as would happen for a young adult.
The Tribunal accepts the documented and oral evidence of the sponsor have a daughter and son, twins born in 2001, noting they attended the wedding of the parties in August 2017, have visited the applicant at times she has been in Australia and speak to her via electronic methods when they visit their father and she is in Vietnam, and determines, at the time of the visa application and this decision, joint responsibility has been demonstrated by the sponsor and visa applicant for the care and support of the two children of the sponsor as would happen for young adults.
The Tribunal accepts the photographic, documented and oral evidence of the parties, of living in different countries with the sponsor travelling to Vietnam and the visa applicant traveling to Australia, and one visit by the parties to Thailand, spending a total of 202 days together since the parties met on 27 December 2015, staying in the mix of hotels in Vietnam, the home of the sponsor in Australia and with the family of the visa applicant occasionally overnight.
The Tribunal accepts the oral evidence from the parties, confirmed independently, on the household arrangements when the parties have been together in Australia and determines, at the time of the visa application and this decision, the parties have shared responsibility for housework.
The Tribunal accepts the documented and oral evidence, confirmed independently, of the majority of days they are together in Vietnam being based around staying in Hotels, so as to provide them with some privacy as the visa applicant until recently had been living with her parents, with regular day time visits to the family of the applicant, noting that by staying in commercial premises the parties are not required to undertake day-to-day household responsibilities.
The Tribunal accepts the parties live in different countries and attached little weight to this issue.
Social aspects of the relationship that must be considered include:-
(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
The Tribunal accepts the photographic, documented and oral evidence of the parties marrying in August 20176 in Australia, with friends and representatives of both families in attendance, and determines at the time of application and this decision the parties have and do represent themselves to other people as being married to each other.
The Tribunal accepts the documented, photographic and oral evidence of family and friends of the parties and determines, at the time of application and this decision, other people are supportive of the relationship and marriage.
The Tribunal accepts the documented, photographic and oral evidence of the parties on planning and undertaking joint social activities in Vietnam and Australia and determines these activities to have represented, at the time of the visa application and this decision, that the parties plan and undertake joint social activities.
Nature of the commitment to each other that must be considered include:-
(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.
The Tribunal accepts the evidence of the parties initially met via a dating website in September 2015, meeting physically on 27 December 2015 when the sponsor, and his sister, travelled to Vietnam, developing the relationship by regular telephone, meeting in Thailand in August 2016 for 18 days during which they became engaged and marrying in Australia on 19 August 2017.
The Tribunal accepts the photographic, documented and evidence of the parties that the sponsor and applicant have lived together for 202 days since first meeting in December 2015, noting the visa applicant has not been able to secure a visa to be in Australia since leaving on 6 September 2017, with the sponsor since that time making 4 trips to Vietnam to be with her.
The Tribunal accepts the oral evidence of the parties of plans for their future together in Australia.
The Tribunal accepts the oral evidence of regular contact between the parties and determines that at the time of application and this decision the parties provide a significant level of companionship and emotional support to each other.
The Tribunal determines that the parties, at the time of application and this decision, have had and continue to have an ongoing commitment to each other and see the relationship and marriage as being long-term.
Any other circumstances
The Tribunal notes oral evidence of the parties of the second marriage of the visa applicant being a difficult time for her and she separated from him in early 2015, this being before the sponsor and visa applicant made contact.
The Tribunal notes the oral evidence of the parties of the sponsor separating from his first wife in 2012.
The Tribunal considered all the evidence on the circumstances of the parties and determines that the evidence supports a finding that, at the time of the application and this decision, the parties have had and continue to have a mutual commitment to a shared life together as a married couple to the exclusion of all others, with the relationship genuine and continuing.
The Tribunal accepts that the parties have been in a committed relationship since December 2015, engaged in August 2016 and married in August 2017 and do not live separately and apart on a permanent basis.
On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of the visa application and the time of this decision.
Therefore the visa applicant meets cl.309.211 and cl.309.221.
The Tribunal considers the secondary applicant should be reconsidered in light of its decision on the primary applicant.
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 applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl.309.211 of Schedule 2 to the Regulations
·cl.309.221 of Schedule 2 to the Regulations
Steven Griffiths
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).

[2020] AATA 482

17 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Natural Justice