Bui (Migration)

[2022] AATA 3311

Bui (Migration) [2022] AATA 3311 (12 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Le Phuong Oanh Bui

REPRESENTATIVE:  Mr Phong Diep Cao (MARN: 1577877)

CASE NUMBER:  1934008

HOME AFFAIRS REFERENCE(S):          BCC2018/2698341

MEMBER:Christine Kannis

DATE:12 August 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl 820.211(2) of Schedule 2 to the Regulations;

·cl 820.221(1)(a) of Schedule 2 to the Regulations.

Statement made on 12 August 2022 at 8:24am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – relationship ceased – genuine and continuing relationship – joint registration of business – pooling of finances – sharing of household responsibilities – social recognition of the relationship – companionship and emotional support – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 5, 65, 359, 363
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.15

CASES

Hasran v MIAC [2010] FCAFC 40
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 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 19 July 2018 on the basis of her relationship with her sponsor, Mr George Henry York. 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. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The visa was refused because the delegate was not satisfied that the applicant’s relationship with the sponsor met the definition of spouse under the Act and therefore she did not satisfy cl 820.211(2)(a).

4. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

5. On 6 July 2022, the Tribunal wrote to the applicant pursuant to s 359(2) of the Act, inviting her to provide evidence of the relationship with the sponsor at the time of application and time of decision. The invitation advised that if the information was not provided in writing by 20 July 2022, the Tribunal may make a decision on the review without taking further steps to obtain the information and she would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The applicant did not provide the information within the prescribed period and no request for an extension of time was received. In these circumstances, s 359C of the Act applies, and pursuant to s 360(3) of the Act, the applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. On 21 July 2022, the Tribunal advised the applicant that she had lost her entitlement to appear before the Tribunal. She was also advised that the Tribunal had decided to allow her seven days to provide any further information, failing which the Tribunal would make a decision based on the information available.

7. On 23 July 2022, the applicant provided documentation which included but was not limited to statutory declarations, photographs and a Residential Tenancy Agreement.

8. The applicant was represented in relation to the review.

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

   Consideration of claims and evidence

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

11. Clauses 820.211(2)(a) and 820.221 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. In the present case, the applicant claims to be the spouse of the sponsor who is an Australian citizen.

12. Section 5F 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 husband and wife 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 as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship, the nature of the household and the persons’ 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.

13. The applicant is a 55-year-old Vietnamese national. The sponsor is a 70-year-old Australian citizen. In the Application for migration to Australia by a partner the applicant stated that she and the sponsor communicated for eight to nine months before they first met in person on 20 October 2017 at Perth Airport. The parties claimed to have lived together and committed to a relationship five days later on 25 October 2017. The applicant departed Australia on 10 January 2018 and returned on 2 February 2018. The parties married on 3 August 2018.

14. Prior to the scheduled hearing, the applicant provided additional documentation which included but was not limited to bank statements and statutory declarations. The Tribunal had before it significantly more information than was available to the delegate.

    Whether the parties are in a spouse or de facto relationship

    Are the parties validly married?

15. If the parties are validly married, they may meet the requirements of a spousal relationship but not a de facto relationship. The evidence provided included a Marriage Certificate showing the applicant and the sponsor married in Perth on 3 August 2018.

16. On the basis of the written evidence before it, the Tribunal concludes that the marriage satisfies the requirements for a valid marriage for the purpose of the Act as required by s 5F(2)(a).

    Are the other requirements for a spousal relationship met?

    Financial aspects of the relationship

17. The Tribunal considered the evidence in relation to the financial aspects including joint ownership of assets, joint liabilities, any legal obligations owed to the other party, the extent of pooling of financial resources and any sharing of day-to-day household expenses.

18. In the Application for migration to Australia by a partner the applicant said:

    The financial aspects of our relationship is completely shared, I purchase clothing, food, entertainment and rent for my fiancee and we have paid and booked our wedding day on 3rd august 2018 all financial required by her is adequately covered by myself.

19. In a Relationship Statement dated 19 August 2019 and signed by the parties, the sponsor said he and the applicant share all financial costs. He said they have separate bank accounts through Bankwest and he has a NAB account through which he transfers his age pension to the applicant’s account for the paying of bills. He said:

    This seems a good arrangement for she has a good knowledge and responsibility with financial needs.

20. The delegate referred to Bankwest statements for an account in the applicant’s name for the period from August 2018 to August 2019. The delegate noted that the statements showed a number of credit transactions, including salary payments, credit transfers from the sponsor, cash deposits and cash withdrawals. The delegate noted that the statements did not show the account was used to pay for rent or utilities. The Tribunal notes that the debit transactions include payments for food, clothing and pharmacy items.

21. Bankwest statements for an account in the applicant’s name for the period from 21 December 2021 to 20 June 2022 were provided. The credit transactions include deposits identified as having been made by the applicant and regular deposits by the sponsor. The debit transactions include payment of household expenses, including payment for food and utilities.

22. In a document titled Common Duties of Daily Chores for George and Oanh dated 7 July 2022 the parties state that they have no major financial commitments such as a house or car. They state that they live day-to-day on the applicant’s weekly wage and the sponsor’s fortnightly pension. The sponsor is in receipt of age pension.

23. Evidence of ASIC registration of the business Transport Select was provided. The registration date was 3 February 2020 and the business name holder was shown as the partnership of G York & O York. A Bankwest Business Account Authority dated 4 August 2021 for Transport Select signed by the parties was provided. The evidence before the Tribunal was that the applicant and the sponsor set up a tour guide business in early 2020, however the impact of the COVID-19 pandemic meant there was minimal business. Consequently, they diversified the business to an international parcel business.

24. Apart from their interest in the partnership, there was no evidence before the Tribunal of significant joint assets or liabilities or of any legal obligations owed to each other. There was no evidence before the Tribunal to show the value of the partnership. Accordingly, the Tribunal finds that the applicant and the sponsor do not have any significant financial assets or liabilities and do not owe each other any legal obligations.

25. The applicant has provided some documentary evidence of the financial aspects of the relationship at the time of application and time of decision, and based on the written evidence, the Tribunal is satisfied that there is a pooling of financial resources and sharing of day‑to‑day household expenses and that this is an indicator of a genuine and continuing spousal relationship.

    Nature of the household

26. The Tribunal considered the evidence in relation to the nature of the household including any joint responsibility for the care and support of children, the parties’ living arrangements and any sharing of housework.

27. In the Application for migration to Australia by a partner the applicant said:

    Oanh and I live together, occupying the same bedroom, we live with the owner of the house (single male) and share the use of the house with him, my fiancee and i spend as much time together, cooking, talking and entertaining each day and evening simply because we adore each other’s company.

28. In a Relationship Statement dated 19 August 2019 the sponsor said:

    We have lived permanently together under the one roof, whereas I take her to her daily job as Beauty practitioner and bring her home each evening. We get on splendidly well together because I do the cooking (Vietnamese food, to me, is not desirable), however Oanh loves Australian food, so we harmonise there well in the kitchen as well.

29. The delegate referred to the applicant providing a Medicare report in her name and her Bankwest statements for the period from August 2018 to August 2019 as showing her address as Olivia Close, Alexander Heights, WA 6064 (Olivia Close). The delegate noted that there was no evidence addressed to applicant and the sponsor at the same address.

30. The Marriage Certificate dated 3 August 2018 shows Olivia Close to be the applicant’s and the sponsor’s place of residence.

31. A statutory declaration dated 18 July 2018 made by Mr Danny Chu was provided in which he said the applicant and the sponsor had been residing with him as tenants since 28 March 2018. Mr Chu made a subsequent statutory declaration dated 15 December 2019 in which he said the parties had lived with him from 28 March 2018 to 27 January 2019.

32. The ASIC registration of Transport Select was provided dated 3 February 2020 which shows the residential address of the applicant and the sponsor is stated to be Gill Street, Morley, WA 6062. The evidence before the Tribunal was that the parties resided at this address from 28 January 2019 to 5 October 2020.

33. A Residential Tenancy Agreement for a property at 6 Sinclair Place, Morley, WA 6062 (Sinclair Place) was provided. The period of the tenancy is stated to be from 6 October 2020 to 5 October 2021, and the applicant and the sponsor are named as the tenants.

34. Telstra, Water Corporation and RAC Insurance invoices addressed to the parties jointly at Sinclair Place 2020, 2021 and 2022 were provided.

35. The Bankwest Business Account Authority dated 4 August 2021 shows the principal place of business and the postal address of the business as Sinclair Place.

36. A document titled Common Duties of Daily Chores for George and Oanh dated 7 July 2022 was provided. The document indicates the division and sharing of household tasks including cooking, shopping, washing and cleaning.

37. The Tribunal considers that the evidence presented relating to the parties’ residential addresses and the nature of the household at the time of application and at the time of decision is an indicator of a genuine and continuing spousal relationship.

    Social aspects of the relationship

38. The Tribunal considered the evidence in relation to the social aspects of the relationship including whether the parties represent themselves to other people as being married to each other, the opinion of friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities.

39. In the Application for migration to Australia by a partner the applicant said:

    Our social activity is spending a day trip in the car, diving around to rural and country areas of Perth, having take aways on the beach as the sun sets in the west, we love to enjoy walking through the park together and walking the many ocean walks of Perth beaches.

40. In a document titled Common Duties of Daily Chores for George and Oanh dated 7 July 2022 the parties state that they watch television, dine out and spend time with their friends and grandchildren.

41. Photographs of the parties signing their Marriage Certificate and together in different regions of Western Australia were provided. The photographs were dated in 2017, 2018, 2019, 2020 and 2022 and included the parties undertaking activities such as camping, dining out and at markets. They included photographs of the parties with others, including others described as grandchildren and friends.

42. Statutory declarations dated 18 July 2018 and 15 December 2019 made by Mr Danny Chu were provided. Mr Chu’s reasons for his belief that parties’ relationship is genuine and continuing included their devotion to each other.

43. A statutory declaration dated 17 June 2018 made by Mr Chawanga Chisanga was provided. Mr Chisanga said he had known the applicant for eight months and the sponsor for two years. He said he had been in contact with the parties on a weekly basis. His reasons for his belief that the parties’ relationship is genuine and continuing included that they stay in each other’s company “24/7” and are only apart when the sponsor has work commitments. The Tribunal gives this evidence some weight. Mr Chisanga made a subsequent statutory declaration dated 20 January 2020 in which he said the parties resided with him and his wife at Dauphine Place, Joondalup, WA 6027, from 25 October 2017 to 10 January 2018.

44. A written statement dated 18 November 2019 made by the sponsor’s daughter, Ms Ashleigh York, was provided in support of the genuineness of the parties’ relationship.

45. A statutory declaration dated 18 November 2019 made by Mr Francis White was provided. Mr White said he had known the applicant for two years and the sponsor for four years. He said he had been in contact with the parties on a weekly basis. His reasons for his belief that the parties’ relationship is genuine and continuing included that when he has been with the parties, they constantly verified their love and consideration for each other. The Tribunal gives this evidence some weight. A written statement dated 8 July 2022 from Mr White was also provided in which he said he had spent time with the parties during dinners and Christmas and birthday celebrations. He said they are devoted to each other.

46. A statutory declaration dated 5 May 2020 made by Ms Pit Nyuk Yap was provided. Ms Yap said she had known the applicant for 2.5 years and the sponsor for five years. She said she keeps in contact with the parties often. Her reasons for her belief that the parties’ relationship is genuine and continuing included that since meeting the applicant, the sponsor has become a different man and has lived a full family life. The Tribunal gives this evidence some weight.

47. A statutory declaration dated 18 July 2020 made by Ms Rajeswary Manohar was provided. Ms Manohar said she had known the parties for two years and said she sees them every Saturday afternoon at a volunteer activity. She said she met the applicant at a Christmas party in 2019. Her reasons for her belief that the parties’ relationship is genuine and continuing included that the applicant takes care of the sponsor, especially when he has a sore back, and that the sponsor frequently mentions the applicant and her work to her. The Tribunal gives this evidence some weight.

48. A statutory declaration dated 25 July 2022 made by Mr Keith Tulip was provided. Mr Tulip said he had known the parties for a period of 11 months. He said he was a tenant living under the same room as them and had observed their devotion to each other. He said the applicant assists the sponsor in his daily chores and in relation to his health and business matters. Given the brief period of time that Mr Tulip had known the parties, the Tribunal accords this evidence limited weight.

49. A statutory declaration dated 28 July 2022 made by the sponsor’s daughter, Ms Lisa York, was provided. She said she had visited the parties at their residence on many occasions and they had visited her “as married parents is a cordial and respective manner proving to us that they are very much in a caring and matrimonial state of living”. Despite the general nature of the information provided by Ms Lisa York, the Tribunal gives this evidence some weight as it is clear that the parties represent themselves as a married couple to the sponsor’s daughter.

50. A statutory declaration dated 28 July 2022 made by the sponsor’s daughter, Ms Ashleigh York, was provided. She said the parties have been living harmoniously been in a happy matrimonial state since their marriage four years ago. Despite the general nature of the information provided by Ms Ashleigh York, the Tribunal gives this evidence some weight as it is clear that the parties represent themselves as a married couple to the sponsor’s daughter.

51. In the Relationship Statement, the sponsor said he and the applicant intended travelling to Vietnam in the New Year so he could become acquainted with her family.

52. The sponsor’s Hostplus superannuation statement dated 9 November 2018 describes the applicant’s relation with the sponsor as “Partner”.

53. Despite the minimal evidence from family or friends at the time of decision, the Tribunal finds, based on the written evidence, that the parties represented themselves to others as being married to each other at the time of application and continue to do so at the time of decision.

    The nature of the persons’ commitment to each other

54. The Tribunal considered the evidence in relation to the nature of the persons’ commitment to each other 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.

1. In the Application for migration to Australia by a partner the applicant said:

   Our commitment is genuine, we are both mature enough to see a for filling future with each other, we both are in need of genuine companionship to last us through the rest of our lives at our age this is will be the ultimate satisfying conclusion to our dream. Our developing time together has gone from strength to strength, we are with each other 24/7 (except the days I am committed to work, never a bad word spoken to each other and our maturity tells us both that this is our final commitment for our future together.

2. In a written statement dated 7 July 2022 the sponsor said the applicant demonstrated her dedication to him when she supported him through a recent cancer diagnosis and treatment over an eight‑month period. He said he has other unrelated medical problems and the applicant assists him daily with these medical problems.

3. The Tribunal finds, based on the written evidence, that at the time of application and time of decision, the parties provide each other with companionship and emotional support, and they see the relationship as long-term.

   Conclusion

4. Having considered carefully all the evidence of the relationship cumulatively and collectively, the Tribunal finds that at the time of application and at the time of decision, the parties were and remain in a committed long-term relationship. In making this determination, the Tribunal has taken into account the fact that the parties have been married for four years.

5. Based on the evidence, the Tribunal concludes as follows:

   ·the parties are married to each other under a marriage that is valid for the purposes of the Act;

   • they are not living separately and apart on a permanent basis and they see their future together as a long-term one;
   • they have a mutual commitment to a shared life together to the exclusion of others; and
   • the relationship is genuine and continuing.

6. On the basis of the above, the Tribunal is 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 applicant meets cl 820.211(2)(a). There is no evidence indicating that the applicant does not satisfy the subcriteria in cl 820.211(2)(c) or (d). The Tribunal finds that the applicant meets cl 820.211(2) and that she continues to meet the requirements of cl 820.211(2) at the time of decision. Therefore, the applicant meets cl 820.221.

7. 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 820 visa.

   decision

8. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

   ·cl 820.211(2) of Schedule 2 to the Regulations;

   ·cl 820.221(1)(a) of Schedule 2 to the Regulations.

   Christine Kannis
   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).