Casey (Migration) - [2024] ARTA 572

CASEY (MIGRATION) [2024] ARTA 572 (4 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Darryl John Casey
Visa Applicants:  Ms Ai Xuan Tran
Miss Kha Doanh La
Respondent:  Minister for Home Affairs
Tribunal Number:  2209783

Tribunal:Senior Member M Bourke
Place:Melbourne
Date: 4 November 2024
Decision:The Tribunal sets aside the decisions under review and remits the applications for a Partner (Provisional) (Class UF) visa for reconsideration, in accordance with the order that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
-cl.309.211, cl.309.212, cl.309.213 and cl.309.221 of Schedule 2 to the Regulations; and
The Tribunal sets aside the decisions under review and remits the applications for a Partner (Provisional) (Class UF) visa for reconsideration, in accordance with the order that the second named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
-cl.309.311 of Schedule 2 to the Regulations.

Statement made on 04 November 2024 at 3:39pm.
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – validly married in home country – financial, household and social aspects of relationship, and nature of commitment – extensive further information and documents provided to tribunal – time spent together every year except when travel restrictions in force – member of family unit child – decision made without hearing necessary – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Administrative Review Tribunal Act 1958 (Cth), s 106(1), (3)
Migration Regulations 1994 (Cth), rr 1.12(b)(i), 1.15A(3), Schedule 2, cls 309.211(2)(a), 309.212, 309.213, 309.221, 309.311
CASE
He v MIBP [2017] FCAFC 206
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 July 2022 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) Subclass 309 visa under s.65 of the Migration Act 1958 (Cth) (the Act).
The primary visa applicant applied for the visa on 26 June 2020, on the basis of their relationship with their sponsor Darryl John Casey, the review applicant. At the 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, who are applicants for the visa, need to satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that there was insufficient evidence to demonstrate that the primary visa applicant was the spouse of the sponsor within the meaning of s.5F(2) of the Act.
The Tribunal has considered the extensive submissions, documents, statements and information given to the Tribunal by the review applicant. The Tribunal has decided to make a decision in the review without holding a hearing after considering all the information available to it, pursuant to s.106(1) of the Administrative Review Tribunal Act. The Tribunal may make a decision without holding a hearing in this review as s.106(3) applies. The only parties to the proceedings are the review applicant, and the Minister who is a nonparticipating party; the decision made by the Tribunal is wholly in favour of the review applicant; and the Tribunal is satisfied that the issues for determination in the review can be adequately determined in the absence of the parties to the proceeding.
The review applicant was represented in relation to the review.
The following are the written reasons the Tribunal has concluded that the decision under review is set aside and the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
SPOUSE / DE FACTO (cl.309.211(2), cl.309.221)
Spouse or de facto relationship
Clause 309.211(2) requires that at the time the visa application was made, 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 by birth.
The visa applicant must continue to be the spouse or de facto partner at the time of the Tribunal’s decision, unless the visa applicant meets the requirements of cl.309.221(2) or (3). In the present case the visa applicant claims to be the spouse of the sponsor 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 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 of the relationship, the nature of the household of the visa applicant and the sponsor, and their commitment to each other, as set out in reg. 1.15A(3). Each of these specific matters contained in reg 1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.
Information before the Tribunal
In the Department’s decision record dated 1 July 2022, the delegate records that the review applicant and the visa applicant did not provide any evidence of the financial aspects of the relationship, or any evidence of the nature of the household. The delegate records that the review applicant and the visa applicant provided limited photos, including studio arranged wedding photos and no witness statements. The delegate considers the information provided by the review applicant and the visa applicant, including the marriage certificate in Vietnam and the travel documents provided, and concludes that there was insufficient evidence of the relationship.
The review applicant provided extensive documents to the Tribunal, after lodging the application for review, in response to an invitation to provide further information in January 2024, and shortly before this decision in October 2024. The information provided included a detailed statutory declaration of nine pages dated 27 October 2024 from the review applicant, a detailed statutory declaration of eight pages dated 28 October 2024 from the primary visa applicant, a statutory declaration dated 29 October 2024 from the review applicant’s employment supervisor for the last three years, a translated affidavit from the primary visa applicant’s older sister dated 25 October 2024 a translated statutory declaration from a friend of the primary visa applicant who attended the wedding dated 25 October 2024, three statutory declarations from close friends or colleagues of the review applicant dated 31 January 2024, 16 August 2023 and 15 August 2023, statutory declaration from a work colleague and friend of the primary visa applicant dated 18 January 2024, extracts from the review applicant’s diary disclosing detail about the relationship, undated statement from the review applicant, statutory declaration from the review applicant dated 31 December 2020, the review applicant’s superannuation recording the primary visa applicant as a 100% binding beneficiary, review applicant’s Internet bank statements recording payments to the primary visa applicant extensive photographs, communication records, travel records, consent records in relation to migration of the secondary visa applicant from her father and submissions from the review applicant’s representative.
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. Based on the certificate of marriage registered in Vietnam, I am satisfied the parties were married on 10 July 2019 in Vietnam. On the evidence before the Tribunal, the review applicant and primary visa applicant were married to each other under a marriage that is valid for the purposes of the act is required by s.5F(2)(a).
Are the other requirements for a spousal relationship met?
Financial aspects of the relationship: – I am satisfied that the parties do not jointly own real estate or other major assets, and do not have any joint liabilities. I am satisfied that the parties do pool their financial resources, including in relation to major financial commitments. I am satisfied that the review applicant has committed significant funds to real estate for the primary visa applicant’s parents, and contributes regularly to the financial support to the visa applicants. I accept the parties share their financial resources. I am satisfied that one person in the relationship does not owe any legal obligation in respect of the other. I am satisfied that when the parties are residing in the same country they share their day-to-day household expenses.
The evidence of the financial aspects of the relationship indicates that the review applicant and primary visa applicant are in a genuine and continuing relationship both at the time of application and that the time of decision.
Nature of the household: – I am satisfied that the review applicant and the primary visa applicant share the care and support of the primary visa applicant’s child (the second named visa applicant). I am satisfied that the parties reside together as a married couple when the review applicant is in Vietnam, or the visa applicants are in Australia. I am satisfied that the review applicant and primary visa applicant share the household responsibilities, including cooking and cleaning and growing produce.
The evidence of the nature of the household indicates the review applicant and primary visa applicant are in a genuine and continuing relationship, and lived together, and not separately and apart, on a permanent basis, both at the time of application and at the time of decision.
Social aspects of the relationship: – I am satisfied that the review applicant and primary visa applicant represent themselves to other people as being married to each other. I am satisfied the opinion of the persons’ friends, relatives and acquaintances is that the nature of their relationship is committed, genuine loving and caring. I am satisfied the basis on which the review applicant and primary visa applicant plan and undertake joint social activities is based on travel plans to spend time with each other both in Australia and Vietnam, regular communication, and supporting each other in their employment and family activities when visiting each other.
The evidence of the social aspects of the relationship indicates that the review applicant and primary visa applicant have a mutual commitment to a shared life as a married couple to the exclusion of all others, and are in a genuine and continuing relationship both at the time of application and the time of decision.
Nature of the persons’ commitment to each other: – I am satisfied that at the time of application, namely 26 June 2020, the review applicant and the primary visa applicant had been married for over 11 months, and at the time of this decision have been married for over four years and four months. I am satisfied the parties have lived together as often as possible, and excluding when global travel restrictions were in force have spent time with each other each year. I am satisfied that the review applicant and the primary visa applicant provide a high degree of companionship and emotional support to each other and that they both see the relationship as a long term one, including making educational plans and enquiries in the review applicant’s hometown in relation to the second named visa applicant.
The evidence of the nature of the persons’ commitment to each other indicates that the review applicant and primary visa applicant have a mutual commitment to a shared life as a married couple to the exclusion of all others, are in a genuine and continuing relationship, and live together, and not separately and apart, on a permanent basis, both at the time of application and at the time of decision.
Conclusion: – I have considered all the circumstances of the relationship as required under reg 1.15A(3), and assessed the evidence provided by the review applicant and the primary visa applicant. I am satisfied that at both the time of application and at the time of decision the review applicant and the primary visa applicant were in a genuine and continuing relationship, had a mutual commitment to a shared life as a married couple to the exclusion of all others, and lived together, and not separately and apart, on a permanent basis. I am therefore satisfied that at the time of application and at the time of decision, the review applicant and the primary visa applicant were in a spousal relationship within the meaning of s.5F(2)(b), (c) and (d).
For all the above reasons I am satisfied that the relationship between the review applicant and the primary visa applicant meets the requirements of a spousal relationship in s.5F(2) at both the time of application and at the time of decision.
Time of application primary criteria
I am satisfied that the primary visa applicant is the spouse of an Australian citizen at the time of application within the meaning of cl.309.211(2)(a), and therefore the primary visa applicant meets the requirements of cl.309.211.
I am satisfied that the spouse of the primary visa applicant is not prohibited from being a sponsor pursuant to cl.309.212(2), and therefore the primary visa applicant meets the requirements of cl.309.212.
I have considered the sponsorship forms and the identity documents in relation to the sponsor. I am satisfied that the primary visa applicant is sponsored by her spouse who has turned 18, and therefore the primary visa applicant meets the requirements of cl.309.213.
As the primary visa applicant meets the requirements of cl.309.211, cl.309.212 and cl.309.213, she satisfies the primary criteria to be satisfied at the time of application in Subdivision 309.21.
Time of decision primary criteria
I am satisfied that the primary visa applicant continues to satisfy the criterion in cl.309.211, that is she continues to be the spouse of an Australian citizen at the time of decision. For the reasons set out above I am satisfied that at the time of decision the primary visa applicant and the review applicant meet the requirements for a spousal relationship as defined in s.5F(2). Accordingly the primary visa applicant meets the requirements of cl.309.221 at the time of decision.
Secondary visa applicant
Cl.309.311 requires the secondary visa applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 309.21. Based on the household registration, certified identification documents and the consent forms, I am satisfied that the second named visa applicant is the biological daughter of the primary visa applicant, who is aged under 18 and is the dependent child of the primary visa applicant. I am satisfied that the second named visa applicant is a member of the family unit of the primary visa applicant within the meaning of reg 1.12(2)(b)(i). Based on the application form I am satisfied that the second named visa applicant made a combined application with the primary visa applicant. For the reasons set out above I am satisfied that the primary visa applicant meets the primary criteria at the time of application in Subdivision 309.21.
For all these reasons I satisfied the secondary visa applicant meets the requirements of cl.309.311 at the time of application.
Given the findings above, the appropriate course is to set aside the decisions under review and remit the applications for the visas to the Minister to consider the remaining criteria for a Subclass 309 visa.
DECISION
The Tribunal sets aside the decisions under review and remits the applications for a Partner (Provisional) (Class UF) visa for reconsideration, in accordance with the order that the first name visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
– cl.309.211, cl.309.212, cl.309.213 and cl.309.221 of Schedule 2 to the Regulations; and
The Tribunal sets aside the decisions under review and remits the applications for a Partner (Provisional) (Class UF) visa for reconsideration, in accordance with the order that the second named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
– cl.309.311 of Schedule 2 to the Regulations.
Date(s) of hearing: N/A
Representative for the Applicant: Mr Bao Nhu Van Truong (MARN: 1677990)