Carle (Migration)

Carle (Migration) [2023] AATA 879 (4 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Lindsay Carle
VISA APPLICANTS:  Ms Thi Thuy Hang Nguyen
Miss Ngoc Truc Ly Mai
CASE NUMBER:  1834316
DIBP REFERENCE(S):  BCC2018/71147
MEMBER:Russell Matheson
DATE:4 April 2023
PLACE OF DECISION:  Sydney
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, cl.309.212 and cl.309.213 of Schedule 2 to the Regulations; and
·cl.309.221 of Schedule 2 to the Regulations.
The secondary applicant meets:
·cl.309.311 of Schedule 2 to the Regulations.

Statement made on 4 April 2023 at 4:58pm
CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – sponsor has provided reasonable financial support to the applicant and her daughter – couple view their relationship as a long-term one – Tribunal is satisfied their relationship is a genuine and continuing relationship – secondary applicant is a dependent child studying full time – parties are committed to one another – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, r 1.15, Schedule 2, cls 309.211, 309.212, 309.213, 309.221, 309.311
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 25 October 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 applicant) is a female national of Vietnam born in September 1983. She applied for the visa on 5 January 2018 based on their relationship with their sponsor, the review applicant. 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 to 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 because the delegate was not satisfied the applicant is the spouse of the sponsor.
The Tribunal exercised its discretion to hold a hearing by video conference. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant and sponsor. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference. The Tribunal is satisfied that the applicant and sponsor were given a fair opportunity to give evidence and present arguments.
The sponsor and applicant appeared before the Tribunal on 4 April 2023 to give evidence and present arguments. The sponsor’s mother was available to provide evidence but was not needed by the Tribunal.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant is the spouse of the sponsor as defined in s.5F of the Act.
The Tribunal has before it the Departmental file relating to the applicant and its own file. The sponsor did not provide a copy of the Department’s decision to the Tribunal.
The evidence the parties provided to the Tribunal is recorded throughout this decision record.
Whether the parties are in a spouse or de facto relationship
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 visa 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 visa applicant claims to be the spouse of the review applicant who is an Australian citizen.
‘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 review applicant’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?
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 indicating the parties were married in Vietnam on 3 December 2017. The marriage certificate was registered in Vietnam on 21 December 2017. There is no evidence before the Tribunal to indicate 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).
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 matters it must take into consideration under r.1.15A(3), and the reasons for its decision.
The Tribunal had the benefit of the sponsor’s and the applicant’s oral evidence. The Tribunal gave all the evidence provided by the parties at the Tribunal hearing and the information contained in the Departmental and Tribunal files due regard. The Tribunal considered evidence given by the parties to be consistent, persuasive and overall credible.
Are the other requirements for a spousal relationship met?
Financial aspects
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, 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 and any combined future financial commitments or plans.
The sponsor has provided a significant amount of money transfer receipts that has been sent to the applicant from the sponsor from 1 May 2018 to 26 October 2022 on a fortnightly basis. The Tribunal finds that the sponsor has provided a reasonable amount of financial support to the applicant and her daughter that is commensurate of the claimed duration of the relationship. The parties gave evidence that when the sponsor has visited the applicant and her daughter in Vietnam, they shared the daily expenses. The applicant gave evidence that the money sent to her is used for her day-to-day expenses, household bills and her daughter’s education. The sponsor sated that during the COVID-19 period, he provided financial support to the applicant and her daughter after the applicant had to close her beef/pork noodle shop and was earning no income. The Tribunal found the applicant and sponsor genuine and their evidence persuasive.
The sponsor and applicant displayed through oral evidence a sound knowledge of each other’s previous employment, income and living arrangements.
There is no evidence before the Tribunal of there having been any wills made listing the other as a beneficiary nor any evidence as to their being nominated as a beneficiary of the other’s superannuation.
The sponsor provided evidence of his managed investments and his ability to provide financial support to the applicant and his stepchild when they arrive in Australia. The Tribunal places some positive weight on this evidence.
Acknowledging that the parties have lived in different countries and continue to do so at the time of this decision, the Tribunal is not concerned that the extent of their financial commitment is limited in terms of their shared finances and plans.
In their circumstances, the Tribunal is satisfied that the parties share finances in a manner commensurate with their own personal situations at this time. That is, the sponsor, who resides in Australia, continues to support the applicant who resides with her daughter in Vietnam.
The parties have no joint liabilities or major assets. There is limited evidence before the Tribunal to indicate that the parties share or pool their financial resources. There is no evidence before the Tribunal that one person in the relationship owes any legal obligation in respect of the other. There is limited evidence before the Tribunal to support that the parties share day-to-day living expenses or pool their financial resources.
The Tribunal accepts there is a degree of difficulty in establishing and sharing financial resources when the sponsor and applicant live in separate countries. The Tribunal finds, based on the evidence before it, that the sponsor has provided reasonable financial support to the applicant and her daughter. The Tribunal places some positive weight on this aspect of the relationship.
Nature of the household
The Tribunal has considered the nature of the household including any joint responsibility for the care and support of children, if any, living arrangements of the parties and the sharing of the responsibility for housework.
The applicant and sponsor provided an apartment lease contract dated 3 January 2018, listing the applicant and sponsor as the lessees. A representative from Hoang Mai Apartments and the applicant signed this contract. The parties also provided a letter from their landlord dated 15 April 2019 stating that the applicant, her daughter and the sponsor lived together at his rental property from 18 March 2018 to 18 April 2018 and from 14 January 2019 to 13 April 2019. The Tribunal gives weight to this evidence of cohabitation. The parties provided photographic evidence of their living arrangements in a household environment with the applicant’s daughter. The parties gave evidence of joint responsibility for the care and support of the applicant’s daughter.
The Tribunal is satisfied that the parties live together when the sponsor visits Vietnam. The parties provided evidence of sharing the household duties and responsibilities and individual tasks in detail, that are culturally based. They have provided consistent evidence of their living arrangements and details about their daily lives, past employment, financial resources and social activities with family and friends. The parties provided evidence that their relationship is supported by their respective families.
Based on the limited evidence above, the Tribunal is satisfied that the applicant and sponsor have resided together as spouses in Vietnam, and they have plans to reside together as spouses in Australia.
Based on the oral evidence of the parties, the Tribunal accepts that they live together and have established a joint household together and that they share the responsibility for the housework, according to culture, when the sponsor visits the applicant in Vietnam. The Tribunal accepts that the parties share joint responsibility for the care and support of the applicant’s daughter.
The Tribunal places some positive weight on this aspect of the relationship.
Social aspects
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 opinion of friends and acquaintances about the nature of the relationship, and any basis on which the parties plan and undertake social activities.
The parties provided a limited number of photographs to the Department of their wedding and social activities with family and friends when the sponsor first visited the applicant in Vietnam in 2017. The sponsor provided a significant amount of photographic evidence of his more recent trips to Vietnam to visit the applicant and his stepdaughter. The photographs depict the parties in several social settings in the company of family and friends and in a household and family environment. The sponsor gave evidence that their social activities are usually restricted to family gatherings in Vietnam. The Tribunal places some weight on the additional photographic evidence provided.
The parties submitted their own individual statutory declarations and statutory declarations from family and friends to the Tribunal that provide some insight into the inception and development of the relationship over a reasonable period. The parties gave evidence that their relationship is supported by both their families. The parties provided statements from the sponsor’s mother and brother and the applicant’s sister. Regarding these statements, the Tribunal places some weight to this evidence that a level of social recognition of the relationship exists that is commensurate of a genuine and continuing relationship existing between the parties.
The parties provided limited photographic evidence of their social activities in the primary application to the Department. The parties have provided a significant amount of additional photographic evidence to the Tribunal that demonstrates the limited social aspects of their relationship with a select group of family and friends in Vietnam. The parties provided detailed and consistent evidence of travel together in Vietnam and Malaysia. The Tribunal found the sponsor’s and applicant’s oral evidence persuasive and genuine at the hearing.
On balance, the Tribunal accepts the applicant and the sponsor plan and undertake social activities when together. The Tribunal is satisfied that the parties represent themselves to family, and a select group of friends as being in a marital relationship. The Tribunal is satisfied that family, friends and relatives view the relationship as a genuine and committed one.
Commitment
The Tribunal has considered the nature of the parties’ commitment to each other, including the duration of the relationship, the length and 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.
The applicant and sponsor claim to have first met at a coffee shop in Vietnam in September 2016 and their relationship developed rapidly. The sponsor left Vietnam in October 2016, with the parties maintaining a long-distance relationship via text messages and video calls. The parties committed to the relationship in June 2017 and married in December 2017 in Vietnam. The parties provided a copy of their marriage certificate registered in Vietnam. The Tribunal accepts that the parties are lawfully married and have been in a relationship for six years.
The parties provided evidence of regular communication during times of separation via telephone video calls and web-based communication apps (Facebook/Messenger) during periods of separation. This was supported by the sponsors family who also communicate with the applicant and her daughter via video calls and messenger frequently.
The parties in oral evidence had a sound knowledge of current and future living arrangements, health, employment, financial resources, personal history and their planned future together. The parties provided evidence of providing emotional support and care and comfort towards each other during significant events in their lives, such as the sponsors ongoing health concerns and surgery after suffering a spinal injury in the workplace. Overall, the Tribunal found the parties’ oral evidence consistent, detailed and indicative of being in a genuine marital relationship. The Tribunal considers the parties’ knowledge of one another, and their everyday concerns is a function of this communication. The Tribunal places significant weight on the oral evidence presented by the parties and the fact they have maintained their relationship for a significant period, over six years. The parties have provided evidence of their own personal belief that their relationship is a long-term one.
The parties gave consistent and detailed evidence about their future together. The parties gave evidence of being a mature couple and that they have a commitment to each other and to the care and support of their stepchild after both suffering broken relationships previously. The Tribunal is satisfied that they have discussed their plans and future aspirations for their stepchild to continue her studies in Australia. The Tribunal is satisfied they view the relationship as a long-term one. The Tribunal places significant weight on the fact that the parties are jointly committed to providing care, comfort, and support to their stepchild. They are both committed to her upbringing and education and are committed to living as a family unit in Australia. That also suggests that they view the relationship as a long-term one. The Tribunal is satisfied they rely on each other for emotional support and companionship.
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 plausible, persuasive and genuine.
The Tribunal is satisfied the applicant and the sponsor provide each other with a degree of companionship and emotional support 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.
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
Based on 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.
Given these findings, the Tribunal is satisfied that at the time the visa application was made and at the time of this decision the parties were in a spousal relationship. Therefore, the applicant meets cl.309.211(2) and cl.309.221.
There is no evidence before the Tribunal that the spouse of the applicant is prohibited from being the sponsor of the applicant. The Tribunal is satisfied that the sponsor at the time of the visa application was an Australian permanent resident who had turned 18. Therefore, the applicant meets cl.309.212 and cl.309.213.
The secondary applicant is a dependent child studying and living in Vietnam supported by the applicant and the sponsor. She is a full-time student wholly dependent upon the applicant for financial support for basic needs such as food, clothing and shelter. The secondary applicant was wholly reliant upon the applicant for a substantial period immediately before the time of application. The secondary applicant is wholly reliant on the applicant at the time of decision, and this is greater than any reliance on any other person or source of support.

The Tribunal is satisfied that the secondary applicant is a member of the family unit of, and made a combined application with, the primary applicant, who satisfies the primary criteria in Subdivision 309.21. Therefore, the secondary applicant meets the requirements of cl.309.311 of Schedule 2 to the Regulations.
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, cl.309.212 and cl.309.213 of Schedule 2 to the Regulations; and
·cl.309.221 of Schedule 2 to the Regulations; and
The secondary applicant meets:
·cl.309.311 of Schedule 2 to the Regulations.
Russell Matheson
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).

[2023] AATA 879

4 April 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies