Bui (Migration)

[2023] AATA 356

Bui (Migration) [2023] AATA 356 (16 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Phuong Thao Bui

CASE NUMBER:  2206954

HOME AFFAIRS REFERENCE(S):          CLF2014/114286

MEMBER:Margie Bourke

DATE:16 February 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 16 February 2023 at 8:38am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Circuit and Family Court remittal – genuine and continuing relationship – validly married – relationship ceased – applicant’s belief that relationship rectifiable – no attendance at hearing and consent to decision without hearing – not reasonable to defer decision – findings restricted to time of decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2)(c), 65, 359A, 376
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cl 820.211(2)(a), 820.221

CASE
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 and Border Protection to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 15 August 2014 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant.

3. The delegate refused to grant the visa in a decision record dated 17 February 2016 on the basis that the visa applicant did not satisfy cl.820.211(2)(a) and cl.820.221 because the delegate was not satisfied that the evidence and information provided by the applicant was sufficient to demonstrate she was the spouse or de facto partner of the sponsor as defined in s.5F or s.5CB of the Act.

4. The Tribunal, differently constituted, in a decision dated 22 May 2017 affirmed the decision of the Department.

5. In a judgement of the Federal Circuit and Family Court of Australia (Division 2) dated 13 April 2022 the decision of the Tribunal dated 22 May 2017 was set aside and the matter was remitted back to the Tribunal. In the reasons for the judgement, it was set out that the Tribunal did not provide the applicant the opportunity or time to provide written arguments in relation to the validity or basis of the nondisclosure certificate, and the Tribunal fell into jurisdictional error as it found it could not assess the claimed motivation for the allegations and therefore should not have had regard to this information. Further in the judgement it was found the Tribunal decision was affected by jurisdictional error by making unreasonable findings and not properly considering the evidence before it.

6. The review applicant was invited to appear before the Tribunal in an in-person hearing scheduled for 20 February 2023.

7. Prior to the hearing the Tribunal wrote to the review applicant and provided a copy of the previous nondisclosure certificate which was relevant to the Federal Court judgement and reasons for remittal, and a copy of the revocation of that previous nondisclosure certificate. The Tribunal provided the review applicant with a copy of a nondisclosure certificate issued pursuant to s.376 of the Act and dated 8 February 2023. The Tribunal invited the applicant to provide submissions as to the validity of the certificate by 15 February 2023.

8. The applicant provided the Tribunal with a hearing response signed and dated 2 February 2023, recording that the review applicant would attend the hearing scheduled for 20 February 2023, but that her representative, and the sponsor Liem Chi Dang, would not be attending. The applicant recorded in the hearing response that she requested a Vietnamese interpreter to assist, and that no other witnesses would be attending the hearing.

9. The applicant provided the Tribunal with a letter dated 9 February 2023, received on 10 February 2023, in which she advised that she would not be attending or taking part in the hearing scheduled for 20 February 2023. The applicant requested the Tribunal make a decision on the papers.

10. In the letter dated 9 February 2023, the applicant enclosed a second hearing response signed and dated 9 February 2023 in which she recorded that she will not be participating in the hearing and consented to the Tribunal making a decision on the papers without taking any further steps to allow the applicant to appear. In the hearing response the applicant requests the Tribunal to consider a document described as “my story”. The applicant enclosed a submission or statement dated 9 February 2023.

11. The Tribunal wrote to the review applicant on 13 February 2023, and stated the Tribunal confirmed the review applicant’s advice that she would not be attending the hearing scheduled for 20 February 2023 and that she had requested the Tribunal to make a decision on the papers. The Tribunal advised that pursuant to her request the hearing scheduled for 20 February 2023 had been cancelled and the Tribunal would proceed to finalise the review and make a decision on the information available to it.

12. The Tribunal did not make any decision in relation to the matter until it received a response from the review applicant in relation to the Tribunal’s request to provide submissions as to the validity of the certificate. The review applicant provided the Tribunal with a detailed response dated 13 February 2023 and received on 14 February 2023.

13. The Tribunal has proceeded to finalise the matter, and at the request of the review applicant has considered these detailed submissions she has provided to the Tribunal on 10 February 2023 and 14 February 2023.

14. The Tribunal has considered the matters in the judgement of the Federal Circuit and Family Court of Australia (Division 2) dated 13 April 2022. However, the Tribunal has received further information and evidence provided by the review applicant and different considerations now apply to this review. The Tribunal has applied time of decision criteria only in determining its decision in this review.

15. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Consideration of claims and evidence

    Whether the parties are in a spouse or de facto relationship

16. Clause 820.221 requires that 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. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.

17. ‘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 reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

18. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. Based on the registered marriage certificate, the Tribunal is satisfied that the review applicant and sponsor were married on 7 August 2014 and the marriage was registered on 28 August 2014. 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). It is therefore appropriate to consider whether the applicant is the spouse of the sponsor at the time of decision.

    Nondisclosure certificate

19. The Tribunal is aware of its obligations to put any adverse information relevant to the issues and matters being determined in the review, whether this information is the gist of information protected by a nondisclosure certificate or not, pursuant to the requirements of s.359A.

20. However the Tribunal finds that the information recorded in the s.376 certificate dated 8 February 2023 is not relevant to its decision on this review, and therefore the requirements of s.359A do not apply to the information covered by the certificate.

21. The Tribunal has considered the review applicant’s submission in relation to the nondisclosure certificate. The Tribunal does not rely on any of the information listed in the folios in the nondisclosure certificate. For reasons set out in the following paragraphs, the Tribunal places no weight on the information contained in the folios listed in the nondisclosure certificate in the decision made in this review.

    Review applicant’s submission

22. The Tribunal notes that the only evidence, information or submissions provided to it after the date of the judgement of the Federal Circuit and Family Court of Australia (Division 2) dated 13 April 2022, are the two submissions provided to the Tribunal from the review applicant dated 9 February 2022 and 13 February 2022.

23. The submission dated 13 February 2022 relates to the nondisclosure certificate and does not refer to the current circumstances of the review applicant.

24. In her statement dated 9 February 2023 of the review applicant provided a detailed statement of the history of her relationship with the sponsor and the process of the application for the visa.

25. At paragraph 20 of the statement dated 9 February 2023 the applicant states as follows – “That soon after the date of the decision, namely April 2022, a combination of factors, with the main one being the inordinate delay for the processing of our Partner visa, the subsequent court challenge and the Covid 19 epidemic which placed an ever increasing strain upon our relationship, my husband’s mental health deteriorated to the stage where he became exasperated with the whole situation and gave up on the marriage. I believe we have a chance to save our marriage and I ask the Department to give us time to rebuild our marriage, given we have been together for such a long period of time. I do not believe that it is over, as we have been through a multitude of issues, which I say is rectifiable.”

26. The Tribunal has considered the submission of the applicant, and accepts her evidence that the spousal relationship between herself and the sponsor has not continued since shortly after April 2022. The Tribunal is satisfied based on the evidence provided by the review applicant that she is not in a spousal relationship with her sponsor at the time of this decision and has not been in a spousal relationship with the sponsor for a period of at least nine months.

27. The Tribunal has considered the request of the review applicant that a decision be deferred as she thinks the relationship may be rectifiable. The Tribunal does not consider it is reasonable that a decision in this matter be delayed in the absence of any other evidence, on the basis of the review applicant submits the relationship may be rectifiable. The Tribunal is satisfied the relationship has not been in existence for approximately nine months, and that it is reasonable for the Tribunal to proceed to finalise the review based on this information.

28. The Tribunal is satisfied based on the information provided by the applicant that her relationship with the sponsor has ceased. The Tribunal considers it is appropriate, based on the information provided by the applicant, that it restrict its findings to time of decision criteria in the circumstances of this review. For these reasons the Tribunal has not considered any of the information or evidence that does not apply prior to time of decision. The Tribunal does not consider information or evidence not applicable to time of decision as relevant to its findings in this review.

29. The Tribunal has considered the information relevant to time of decision. This information is limited to the submissions provided by the review applicant in her statement dated 9 February 2023. The Tribunal accepts the evidence of the applicant that the sponsor has given up on the marriage, and at the spousal relationship does not exist and has not been in existence for approximately nine months. The Tribunal is satisfied that the married relationship between the applicant and the sponsor has ceased, and is not genuine and continuing at the time of this decision. The Tribunal is satisfied that at the time of decision the applicant is not the spouse of the sponsoring partner within the meaning of s.5F(2)(c). The Tribunal is satisfied that at the time of decision the applicant does not continue to be the spouse of the sponsoring partner for the purposes of satisfying time of decision criteria in cl.820.221.

30. The review applicant has not submitted that any of the alternatives where a relationship has ceased would apply. There is no evidence before the Tribunal that the sponsor is deceased, or that the review applicant is making a claim that relevant family violence has occurred, or that the review applicant and sponsor have legal obligations in relation to children.

31. The Tribunal is satisfied based on the evidence that the review applicant does not continue to meet the requirements of subclause 820.211(2), and does not continue to be the spouse of the sponsoring partner at the time of decision.

32. The Tribunal is satisfied that there is no evidence before it that the sponsor has died, and therefore the Tribunal is satisfied that there is no evidence before it that the review applicant would have continued to have met the requirements of subclause 820.211 and continued to have been the spouse of the sponsoring partner if the sponsoring partner had not died.

33. The Tribunal is satisfied that there is no evidence before it that the review applicant would have continued to have meet the requirements  of subclause 820.211 except that the relationship between the applicant and sponsoring partner has ceased and either the applicant or a dependent child of the sponsoring partner or of the applicant or both of them has suffered family violence committed by the sponsor.

34. The Tribunal is satisfied that there is no evidence before it that the review applicant would have continued to have met the requirements of subclause 820.211, except that the relationship between the applicant and sponsoring partner has ceased, and the applicant has custody or joint custody of or access to, or has a residence order or contact order made under the Family Law Act 1975 relating to at least one child in respect of whom the sponsoring partner has been granted joint custody or access by a court or has a residence order or contact order made under the Family Law Act 1975 or has an obligation under a child maintenance order made under the Family Law Act 1975 or any other formal maintenance obligation.

35. For the above reasons the Tribunal is satisfied that based on the evidence before it that the review applicant does not meet the criteria to be satisfied at the time of decision in cl.820.221.

36. Therefore the applicant does not meet cl.820.221.

37. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    decision

38. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Margie Bourke
    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).