Bui (Migration)

[2022] AATA 4461

Bui (Migration) [2022] AATA 4461 (10 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Ngoc Anh Bui

CASE NUMBER:  1818589

HOME AFFAIRS REFERENCE(S):          CLF2014/36111 CLF2018/171941

MEMBER:Russell Matheson

DATE:10 October 2022

PLACE OF DECISION:  Sydney

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(2)(c) of Schedule 2 to the Regulations

Statement made on 10 October 2022 at 9:39am

CATCHWORDS  
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – genuine spousal relationship – sponsor’s Facebook profile – financial aspects – nature of the household – social aspects – nature of the commitment – decision under review remitted 

LEGISLATION 
Migration Act 1958 (Cth), ss 5F, 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 Home Affairs on 20 June 2018 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a female national of Vietnam born in July 1993. She applied for the visa on 6 March 2014 based on her relationship with her sponsor. 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 (Cth) (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.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 801.221(2) of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant was the spouse of the sponsor. The applicant seeks review of the delegate’s decision.

4. The applicant appeared before the Tribunal on 17 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor Mr Tony Le Phong. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant is the spouse of the sponsor as defined in s.5F of the Act.

7. The Tribunal has before it: the file from the Department of Immigration (the Department) relating to the applicant; its own file; and a copy of the Department’s decision provided by the applicant to the Tribunal.

8. The evidence the parties provided at the Tribunal hearing is recorded throughout this decision record.

9. The Tribunal notes the applicant was granted his Partner (Temporary) (Class UK) (Subclass 820) visa on 2 May 2015 and provided relevant evidence of the relationship that included statutory declarations, wedding photos, bank statements, correspondence addressed individually and jointly at their residential address, tax invoices, joint travel documents and photographic evidence of their social activities in several different settings. The parties provided a significant amount of additional information, documentary and photographic evidence to the Tribunal for consideration that include:

   ·Numerous photographs/wedding photographs.

   ·Correspondence from Medicare.

   ·Correspondence from NRMA.

   ·Correspondence from Hostplus superannuation.

   ·Individual tax returns.

   ·PAYG payment summaries for the applicant and sponsor.

   ·Correspondence from RMS, NSW.

   ·Telephone bills.

   ·Bank statements; and

   ·Individual statements from the applicant and sponsor.

   Whether the parties are in a spouse or de facto relationship

10. 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.

11. ‘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 sponsor’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) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

12. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant provided a copy of the marriage certificate registered pursuant to the Marriage Act 1961, at the Registry of Births, Deaths and Marriages, Sydney, NSW, on 24 February 2014. There is no evidence before the Tribunal that the marriage is not valid. 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).

13. After careful consideration of all the evidence before it, the Tribunal has reached the conclusion that it is satisfied the applicant is the spouse of the sponsor within the meaning of s.5F of the Act. Below, the Tribunal sets out its consideration of the evidence under the relevant aspects of each of the matters it must take into consideration under r.1.15A(3), and the reasons for its decision.

14. The Tribunal had the benefit of the applicant’s and sponsor’s evidence at the review hearing and found their evidence to be detailed, consistent and, overall, credible. The Tribunal gave all the evidence provided by the applicant and sponsor to the Department and the Tribunal file due regard. The applicant provided a significant amount of additional documentary and photographic evidence to the Tribunal. 

15. The Tribunal acknowledges the delegate’s concerns set out in the primary decision record regarding the sponsor’s Facebook profile. The Tribunal discussed this with the sponsor during the hearing, particularly regarding the sponsor’s single status mentioned. The sponsor claimed that he had not updated his profile since attending high school and that he randomly used the site for ‘liking’ posts and offering congratulatory remarks to friends, and it was an oversight that he had not updated his profile to married. The Tribunal found the sponsor to be genuine and his explanation convincing. The parties provided consistent and detailed oral evidence and a significant amount of additional documentary evidence and a written submission to the Tribunal. The Tribunal finds the parties to be credible witnesses.

    Are the other requirements for a spouse relationship met?

    Financial aspects

16. The Tribunal has considered the financial aspects of the relationship including any joint ownership of real estate or major assets, any joint liabilities, the extent of any pooling or sharing of financial resources, especially in relation to major financial commitments, whether any person in the relationship owes any legal obligation in respect of the other, and the basis of any sharing of daily household expenses.

17. The parties provided evidence of operating two joint Commonwealth Bank of Australia (CBA) accounts (#8490 and #6990) that are utilised for day-to-day living expenses and household bills. They also provided evidence of using debit cards (#6412 and #6029). The parties gave evidence that their wages are deposited into joint account #8490 and they transfer money between the accounts and that the second joint account is utilised as a savings account for the future purchase of a house together. The sponsor also gave evidence that he has his own account with the CBA #3850 which he utilises for his own personal use. He further stated that he had an account with ING (#7993) that he used to deposit his wages into that is now closed.

18. The parties gave evidence that the applicant works for an engineering company and the sponsor works in a nail salon. The applicant and sponsor had a sound knowledge of each other’s income and hours worked and their overall financial situation and future financial expectations and plans.

19. The parties informed the Tribunal and provided documentary evidence of having informed the ATO and Centrelink of their relationship status and that the sponsor has made the applicant the sole beneficiary of his superannuation (Hostplus). They also provided bank statements invoices and receipts for car gestation, licence renewal and phone bills addressed to them individually and jointly at their current address in Alexandria.

20. Overall, the Tribunal finds that there is a reasonable amount of evidence before the Tribunal to demonstrate that the applicant and sponsor have pooled and shared their financial resources at the time of decision. The parties provided consistent and detailed evidence regarding the financial aspects of their relationship. The Tribunal found the parties evidence overall to be credible.

21. There is no evidence before the Tribunal that the parties have any joint ownership of real estate, major assets, joint liabilities or any one person in the relationship owes any legal obligation in respect of the other. The applicant has provided limited information regarding the financial aspects of the parties’ relationship in relation to pooling and sharing financial resources or sharing daily living expenses. The Tribunal places some weight on this aspect of the relationship.

    Nature of the household

22. The Tribunal has considered the nature of the household, including any joint responsibility for the care and support of children, if any, the living arrangements of the parties and the sharing of the responsibility for housework.

23. The applicant and sponsor in their written submissions and oral evidence gave detailed and consistent evidence about their living arrangements and the Tribunal found them to be persuasive and genuine. The Tribunal is satisfied that the parties live together. The parties provided evidence of sharing the household duties and responsibilities and individual tasks in detail. They have provided consistent evidence of their living arrangements and details about their daily lives, employment, income, work hours, health issues, social activities, care and support for each other and their future. The parties provided significant documentary evidence in individual and joint names indicating that they have lived together for a significant period at their current address. The Tribunal is satisfied the evidence in relation to the nature of the parties’ household is plausible and supportive of a contention that they are in a genuine and continuing relationship.

24. Overall, the Tribunal accepts the parties live together and that they have established a joint household. The Tribunal is satisfied that they share the household duties and responsibilities. There are no children from the relationship.

    Social aspects

25. The Tribunal considered the social aspects of the relationship, including whether the parties represent themselves to other people as being married to each other, the opinions of friends and acquaintances about the nature of the relationship, and any basis on which the parties plan and undertake social activities.

26. The Tribunal accepts that the relationship is socially recognised by family and friends. There are limited statutory declarations (Form 888) from family and friends of the applicant and sponsor presented to the Tribunal, who express their view that the relationship is a genuine and continuing one. The Tribunal places little weight upon the statements provided with the application as they give little insight into the inception and development of the relationship over time and are general in nature.

27. The parties provided a significant amount of photographic evidence in each other’s company and with friends in Australia attending numerous social events in a variety of social settings such as dining out and attending significant events such as a friend’s wedding.

28. The Tribunal is satisfied they plan and undertake joint social activities and represent themselves to others as being married to each other. The Tribunal accepts that the parties’ family and friends believe that they are in a genuine and continuing spousal relationship. The Tribunal is satisfied that there is family support for the relationship.

    Commitment

29. The Tribunal has considered the nature of the parties’ commitment to each other, including the duration of the relationship, the length of time the parties have lived together, the degree of companionship and emotional support they provide each other, and whether the parties view the relationship as a long-term one.

30. The applicant and sponsor were married in February 2014. The applicant provided a copy of the marriage certificate registered pursuant to the Marriage Act 1961, at the Registry of Births, Deaths and Marriages, Sydney, NSW. The Tribunal accepts the parties are lawfully married and have been in a relationship for over eight years.

31. The parties provided evidence that since meeting and entering a committed relationship and living together they have provided each other with the emotional support, care and companionship that is expected of a married couple. They further state that they have expressed to their family and friends in Australia and Vietnam, and they believe themselves that their relationship is a long-term one. The sponsor provided documentary evidence of a binding agreement making the applicant a 100% beneficiary of his superannuation.

32. The parties provided evidence that they look to each other for love and support in their lives and have future aspirations of purchasing their own home and having children together. The parties provided significant evidence of their savings to achieve their future goals.  They further stated that they are planning to visit family and friends in Vietnam when the COVID-19 pandemic is over. The Tribunal found the parties genuine and credible witnesses.

33. The Tribunal is satisfied that the parties see their relationship as stable, mutually supportive and a long-term one. The Tribunal considers their evidence regarding their commitment to each other to be very credible, persuasive and genuine.

34. The Tribunal is satisfied the applicant and the sponsor derive a strong degree of companionship and emotional support from each other that is commensurate with a couple being in a genuine and continuing relationship. The Tribunal is satisfied the couple view their relationship as a long-term one.

35. The Tribunal is satisfied, having regard to the totality of the circumstances and the evidence provided, that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others. The Tribunal is satisfied their relationship is a genuine and continuing relationship and that they do not live separately and apart on a permanent basis.

    Findings

36. Having considered all aspects of the relationship, the Tribunal is satisfied that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others. The Tribunal is satisfied their relationship is genuine and continuing. The Tribunal is satisfied they live together. Given these findings the Tribunal is satisfied that at the time of this decision, the parties are in a spousal relationship.

37. Given these findings, the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of this decision.

38. Therefore, the applicant meets cl.801.221(2)(c).

    Conclusion

39. 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

40. 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.

    Russell Matheson
    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).