Bui (Migration)

[2019] AATA 4129

Bui (Migration) [2019] AATA 4129 (3 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Ngoc Thanh Bui

CASE NUMBER:  1702182

DIBP REFERENCE(S):  CLF2013/105591 CLF2017/10134

MEMBER:Simone Burford

DATE:3 September 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl.801.221(c) of Schedule 2 to the Regulations.

Statement made on 03 September 2019 at 12:47pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – genuine married relationship – joint accounts – business partnership – beneficiaries of wills and superannuation accounts – shared household expenses and duties – companionship and emotional support – credible witness – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), 65
Migration Regulations 1994(Cth), r 1.15A, Schedule 2, cl 801.221

CASES
He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 2 February 2017 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, Mrs Ngoc Thanh Bui applied for the visa on 6 May 2013 on the basis of her relationship with her sponsor, Mr Minh Tan Huynh. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801. 221(2) because the delegate was not satisfied that the relationship between the applicant and the sponsor was genuine. The delegate was not satisfied that the applicant was the spouse or de facto partner of the sponsor as defined under the Act.

4. The applicant appeared before the Tribunal on 20 December 2018 to give evidence and present arguments. On that occasion the Tribunal received oral evidence from Tu Xuan Van, a friend of the applicant.  Due to the late submission of extensive documentary evidence, the Tribunal adjourned the hearing to another day to receive oral evidence from the applicant and the sponsor.  The hearing resumed on 7 February 2019.  On that date the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also took evidence from the sponsor.  At the commencement of the hearing the applicant’s registered migration agent indicated that the applicant wished to call two additional witnesses, Nguyen Phong Le, a friend of the parties and Rodney Joseph Knox, the parties’ landlord.  The Tribunal had not been previously notified of these witnesses.  As there was insufficient time to take evidence form these witnesses at that hearing the Tribunal indicated it would review their statutory declarations on the file and, if necessary, hold another hearing to take evidence from them.  For the reasons outlined below the Tribunal did not regard it as necessary to take evidence from the witnesses.

5. The Tribunal hearings were conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant is the spouse or de facto partner of her sponsor as defined under the Act.

   Whether the parties are in a spouse or de facto relationship

9. Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

10. ‘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 sponsor’s 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?

11. 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 certified copy of Marriage Certificate issued by the Western Australian Registry of Births, Deaths and Marriages dated 9 October 2012 which registers the marriage of the applicant and sponsor on 6 October 2012 in Western Australia. 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?

12. The Tribunal has before it the delegate’s decision which was submitted by the applicant to the Tribunal. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it including material submitted by the review applicant to the Tribunal including material submitted following the first hearing. The Tribunal has had regard to detailed written submissions made on behalf of the review applicant by her representative and documentary evidence submitted to the Tribunal. The Tribunal also has before it the Department’s files relating to the applicant.

13. The Tribunal notes that the parties provided significant additional information to the Tribunal including third-party statements from friends and family of the parties supporting the relationship and their account of its history and attesting to the ongoing nature of the relationship. They also provided documentary evidence of the relationship including bank records, tax records and superannuation and insurance documents.

14. The review applicant and the visa applicant both gave evidence at the hearing, the visa applicant via telephone from Vietnam. The Tribunal questioned them at length about their relationship. The Tribunal took evidence regarding the development of their relationship, their relationship history, knowledge of each other’s background and family history, financial, social and household aspects of their relationship and the nature of their commitment to each other.

15. The Tribunal found the review applicant and visa applicant to be credible witnesses and accepts their oral evidence on this basis. The Tribunal has considered their oral evidence together with the additional documentary evidence submitted at the review stage in reaching its findings.

    Relationship background

16. The applicant is a 36-year-old Vietnamese national. She has not been previously married or in a previous de facto relationship. The sponsor is a 47-year-old Australian citizen. The sponsor was previously married in 2005 and was divorced in 2010. A copy of the review applicant’s divorce papers were provided on the Department’s file. He has one child from that relationship.

    Credibility concerns

17. The delegate’s decision raised concerns regarding inconsistencies or gaps in the witness, Mrs Van and the applicant’s answers to questions during the departmental interview. These were put to the applicant and Mrs Van by the Tribunal at the hearing. These concerns included:

    ·     The applicant was unable to remember her Vietnamese wedding date during a telephone interview with the Department and was unable to provide photographs of her traditional wedding ceremony in Vietnam;

    ·     There was a lack of evidence of communications between the applicant and sponsor.

    ·     Ms Tu Xuan Van, a supporting declarant, was unable to remember the sponsor’s name when she was interviewed.

    ·     The parties’ joint account did not show standard living expenses but only rental fees and that other documents were under the individual name of the sponsor.

    ·     Mr Bui Ngoc Bich, the applicant’s father, posted $29,990 into the joint account on 5 September 2013, three weeks after the provisional partner visa was granted.  

18. The applicant said that when she got the call from the Department she was at work and it was hard to talk and she was stressed in giving her answers. She said she provided photographs of the wedding to the agent but didn’t provide them to the Department. The Tribunal notes the photographs were on the Tribunal file. She said Mrs Van was at the station when she was called and her English is not good. Her baby had been injured in the forehead and she was stressed and did not realise who  the caller was. She said that at the time of the application the sponsor was still operating his bakery and their expenses were being met through cash through the business.  They were only using the joint account to pay rent. She said the money had been paid to them by her father and the timing was coincidental.  She told the Tribunal those funds were used to cover losses in the business.

19. Mrs Van told the Tribunal she was at the train station with her children when she was called by the Department and it was noisy and she couldn’t recall what was said. She said she didn’t know what the sponsor’s last name was but she didn’t see him often, she mostly saw the applicant.

20. While the Tribunal did not find Mrs Van to be a reliable witness, having regard to all the evidence and the fact that Mrs Van was merely a friend of the applicant’s whose interest in the details of the  parties’ relationship was understandably peripheral, the Tribunal did not find that Mrs Van’s lack of an accurate recollection of events undermined the otherwise consistent testimony of the applicant and sponsor.  The Tribunal places some weight on Mrs Van’s willingness to attend the hearing to give evidence notwithstanding her incomplete or inaccurate recall of the details of the parties’ relationship or her lack of regular contact with the sponsor.

21. With regard to the applicant’s testimony, the Tribunal found her to be a credible witness and notes that her responses to questions about the relationship were broadly consistent with those of the sponsor.  The Tribunal accepted her evidence.

    Consideration of circumstance of the relationship

22. In forming an opinion whether the parties are in a spousal relationship, consideration must be given 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) of the Regulations, which is attached to this decision.

    Financial aspects

23. The Tribunal has had regard to the evidence provided relating to the financial aspects of the relationship including joint ownership of real estate and other major assets and joint liabilities, the extent of pooling of financial resources, any legal obligations owed by the other party and any sharing of the day-to-day household expenses.

24. The parties have provided some documentary evidence in relation to their financial circumstances.

25. The couple opened a joint bank account in July 2012 and each has a claim to the account. The couple both continue to contribute to this account from their individual incomes. This account is the primary transactional account for day-to-day expenses and they use it to cover items such as rent, utilities, groceries and painting supplies for the sponsor’s painting business. Documentary evidence was consistent with this account. The parties opened an additional joint account in October 2016 to save money for a home. They transfer $200 a month into this account. Documentary evidence was consistent with this account.  Documentary evidence was also provided of the closing of the applicant’s personal account in 2016 and the sponsor’s business accounts in 2016 and 2017.

26. Utility accounts are not in joint names but they are paid for from  the joint account. Mobile phones are in the sponsor’s name and the energy account is in the applicant’s name. In August 2018 the couple combined their current insurance policies and they provided evidence of this.

27. The sponsor has operated several businesses during the relationship and these are in the sponsor’s name. The parties testified that they found it easy to keep the financial aspects and ownership in the sponsor’s name as he was responsible for the businesses. They testified that the applicant has assisted the sponsor with managing the businesses and that when the sponsor was operating his bakery as a trust both parties were beneficiaries of the trust. Documentary evidence of this was provided. The applicant assists the sponsor in his current business which is run as a partnership in joint names.

28. The parties also provided tax returns for multiple years consistently disclosing each other as spouses. Documentary evidence of this was supplied.

29. There is no evidence that the parties have any joint ownership of real estate or other major assets or any joint liabilities other than the current partnership arrangement. The Tribunal finds the parties do not jointly own real estate or any other major assets however they have a partnership arrangement and are saving for a home.

30. The parties also provided copies of wills made in October 2018, superannuation beneficiary statements naming each other as beneficiaries, car insurance policies and joint consumer accounts at Bunnings and Sherwin-Williams.

31. The Tribunal raised with the parties that much of the documentation or arrangements appear to have been made in late 2018 including after the appointment of the applicant’s representative in August 2018. This raises the question as to whether the arrangements had been made to support or provide evidence in support of the visa application. The parties maintained that arrangements such as the car insurance arrangements had been required to be changed due to changes in their circumstances and other arrangements had been in place for some time. They indicated that they only became aware of the need to have wills in 2018 and that drove the timing of the documents. While the Tribunal formed the view that some of the arrangements may have been formalised in order to facilitate  providing documentary evidence in support of the visa application, the arrangements themselves were not inconsistent with the parties’ existing relationship and more reflected a formalisation of those arrangements rather than an attempt to create evidence.

32. The parties provided evidence of combining finances and sharing of day-to-day expenses through their bank statements which show expenditure consistent with sharing household expenses. The Tribunal finds that the parties have shared day-to-day expenses.

33. On the basis of the evidence available the Tribunal finds that the parties’ financial arrangements are such that would indicate a genuine married relationship.

    Nature of the household

34. The Tribunal has had regard to the evidence as to the nature of the household including the parties’ living arrangements and any sharing of housework.

35. The parties gave consistent evidence they began living together in July 2012 when the applicant moved into the home in which the sponsor was living. They provided a statement from Mr Ha Van Huynh who they were living with at the time. In April 2015 they moved into their own premises where they currently reside. Two statements from the landlord, Mr Knox, were provided, one in 2016 and one in December 2018. In addition Mr Knox indicated he was willing to testify before the Tribunal.

36. A copy of the couple’s  tenancy agreement was supplied with their application and more recent renewal agreements were also provided. Correspondence both joint and individually addressed to the parties at the same address over an extended period was provided. The Tribunal finds that the applicant typically takes care of  the household duties and laundry and the sponsor attends to handyman and outdoor jobs such as lawn mowing and gardening. They share responsibility for cooking.

37. The Tribunal finds on the evidence the parties do not have joint responsibility for the care and support of children, do not have any children  together and the parties testified that the sponsor does not have contact with or custodial responsibility for his daughter from his prior marriage. Both parties testified that he provides informal child support to his daughter in the form of cash payments to his former wife. Their evidence in this regard was consistent.

38. Having regard to all the evidence, the Tribunal finds that the parties’ household arrangements are such that would indicate a genuine relationship.

    Social aspects of the relationship

39. The Tribunal has had regard to the evidence provided as to whether the parties represent themselves to others as being married to each other, the opinion of the parties’ friends and acquaintances about the nature of the relationship and any basis on which the parties plan and undertake joint social activities.

40. The parties provided evidence they travelled together to Vietnam in late 2016 to spend two weeks visiting their families. The sponsor made a further trip to Vietnam in January 2018 to attend the applicant’s brother’s wedding ceremony and celebrations. The applicant did not travel to Vietnam as she believed that she was unable to leave Australia due to her visa conditions. The sponsor went on her behalf.

41. The parties testified that they are not overly social people. They both provided evidence that the sponsor in particular is a reserved person and does not enjoy socialising widely. However, they provided a number of third-party statements in support of the application. These included statements from Ms Van who testified at the hearing. Ms Van was the applicant’s landlord at the time that the applicant and sponsor met. The parties met when the sponsor was engaged to paint Mr Van’s home in 2012. While the Tribunal had some concerns about the reliability of Ms Van’s evidence the testimony of the witnesses about how the parties met was consistent.

42. Additional statements were provided by Nguyen Phong Le, a friend of the couple, Linh Phoung Ngo, a friend of the applicant, Mr Rodney Knox, the couple’s landlord, and Thi-Hong Lien Nguyen, a friend of the parties. The parties also provided a letter of support from the applicant’s brother, Mr Quang Duy Bui, a letter of support from the applicant’s parents and photographs of the applicant’s brother’s wedding which include photographs of the sponsor who attended on behalf of the couple.

43. The applicant’s mother and brother travelled to Perth in October 2012. They stayed with the applicant and sponsor whom they were introduced to on the visit. They did not remain for the applicant and sponsor’s Australian wedding but the applicant’s mother attended the Vietnamese wedding in January 2013. The applicant’s brother was unable to attend due to study commitments.

1. The Tribunal places weight on the third-party statements and in particular on the willingness of several witnesses to make themselves available to the Tribunal and to update and continue their support for the relationship some years after initially providing statutory declarations in support of the application.

2. The Tribunal finds that the social aspects of the parties’ relationship are consistent with a genuine married relationship.

   Nature of commitment

3. The Tribunal accepts on the evidence that the parties met in 2012 and married later that year. The Tribunal recognises the length of the relationship.

4. The Tribunal had regard to evidence provided in relation to the nature of the parties’ commitment to one another including the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other, and whether they see the relationship as long term.

5. The parties provided consistent evidence that they have supported each other through the relationship and are planning to purchase a home together. They expressed a desire to have a family in the future if their financial circumstances allow.

6. As noted above the parties provided evidence that they have nominated each other on their superannuation accounts and in individual wills.

7. The parties presented at the hearing as a committed couple. They clearly provide companionship and emotional support to one another and view the relationship as long term. The Tribunal is satisfied on the evidence that the nature of the parties’ commitment to each other demonstrates a genuine married relationship.

8. While the Tribunal understands the issues raised in the delegate’s decision based on the material available at that time, having considered all of the circumstances of the relationship including the evidence relating to 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), the Tribunal is satisfied that the requirements of section 5F are met at the time of decision.

9. Given these findings the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of this decision. Therefore the applicant meets cl.801.221(2)(c).

10. 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 801 visa.

    DECISION

11. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

    ·cl.801.221(2)(c) of Schedule 2 to the Regulations.

    Simone Burford
    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).