CUHADAR (Migration) - [2024] AATA 2518

CUHADAR (Migration) [2024] AATA 2518 (24 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Aziz Cuhadar
VISA APPLICANTS:  Mrs Thi Linh Nguyen
Miss Thanh Phuong Trang Nguyen
REPRESENTATIVE:  Mr Kayhan Oncu
CASE NUMBER:  1926926
DIBP REFERENCE:  BCC2018/3108244
MEMBER:Katie Malyon
DATE:24 June 2024
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 of Schedule 2 to the Regulations; and,
·cl 309.221 of Schedule 2 to the Regulations.

Statement made on 24 June 2024 at 1:48 pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – financial aspects – nature of the household – social aspects – nature of the commitment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 360
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 820.211, 820.221
CASES
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
Re MILGEA and Dhillon [1990] FCA 144
Singh v MIEA [1996] FCA 1429

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 Home Affairs on 11 September 2019 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, Vietnamese national Mrs Thi Linh Nguyen (hereinafter Mrs Nguyen), applied for the visa on 17 August 2018 on the basis of her claimed spousal relationship with her sponsor, the review applicant Mr Aziz Cuhadar. 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 satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that Mrs Nguyen did not satisfy

cl 309.211 of Schedule 2 to the Regulations because, after consideration of the limited evidence provided in support of the visa application and information provided in response to the delegate’s 3 natural justice invitations issued pursuant to s 56 of the Act (on 4 September 2018, 29 November 2018 and 23 January 2019), the delegate was not satisfied that, both at the time of lodgement of the visa application and at the time of the delegate’s decision, Mrs Nguyen and Mr Cuhadar were mutually committed to a shared life as spouses to the exclusion of all others as required by reg 1.15A of the Regulations.
Following refusal of Mrs Nguyen’s visa application on 11 September 2019, an application for review was lodged with the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CUHADAR (Migration)

Details

AGLC: CUHADAR (Migration) [2024] AATA 2518
Case: [2024] AATA 2518
Decision Date: 24 June 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr Cuhadar and Mrs Nguyen concerning a Partner (Provisional) (Class UF) visa, Subclass 309. The primary issue before the Tribunal was whether the parties were in a genuine and continuing spousal relationship at the time of the visa application and at the time of the decision. The Tribunal had before it significantly more information than was available to the original decision-maker.

The legal issue for determination was whether Mr Cuhadar and Mrs Nguyen were in a genuine spousal relationship, as defined by the *Migration Act 1958* and *Migration Regulations 1994*, at the relevant times. This required an assessment of various aspects of their relationship, including financial contributions, the nature of their household, their social interactions, and the overall commitment they had to each other as a married couple.

The Tribunal applied the principles outlined in s 5F of the *Migration Act 1958* and reg 1.15A of the *Migration Regulations 1994*, which require consideration of the financial aspects, nature of the household, social aspects, and the nature of the commitment to each other. The Tribunal noted the extensive travel history of Mr Cuhadar to Vietnam, the parties' engagement and marriage, and the lodging of updated forms after an adjourned hearing. Given the volume of information and the need for a comprehensive assessment of the relationship's genuineness and continuation, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the applications for Partner (Provisional) (Class UF) visas for reconsideration, directing that the first named visa applicant meets the criteria specified in cl 309.211 and cl 309.221 of Schedule 2 to the Regulations. The application of the second named visa applicant, Thanh Phuong Trang Nguyen, will be determined by reference to the outcome of Mrs Nguyen’s application on remittal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. It acknowledges that it has significantly more information (in excess of 1,200 pages) than that which was available to the delegate at the time of her decision. Consistent with cl 8.2 of the Tribunal President’s Direction Conducting Migration and Refugee Reviews dated 1 August 2018, the Tribunal has restricted its review to the issue that is the subject of the delegate’s adverse decision. It will provide to the Department the updated Form 40SP and Form 47A which were lodged after the adjourned hearing and are referred to above in para [23]. CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether Mrs Nguyen and Mr Cuhadar were in a genuine spousal relationship at the time of lodgement of the visa application, and whether they continue to be in a genuine spousal relationship at the time of this decision. Relevant provisions of the Act and the Regulations referred to in this decision are set out in the Attachment to the decision. Background By way of background, the parties claim to have been introduced by Mrs Nguyen’s brother Minh Dung Nguyen who lives in Australia and who is also a friend of Mr Cuhadar. The parties first met in person on 1 January 2015 when Mr Cuhadar travelled to Vietnam to spend time with Mrs Nguyen after the couple had been introduced to each other over the phone in 2014 by Minh Dung Nguyen. Mr Cuhadar travelled to Vietnam again on 3 August 2015 with Mrs Nguyen’s brother Lu Hoang Nguyen and spent time there with Mrs Nguyen and her family. On 17 May 2016, Mr Cuhadar made his third trip to Vietnam. It was during this trip that the parties became engaged on 22 May 2016 and held an engagement party with family and friends. Following Mr Cuhadar’s return to Australia on 3 June 2016, Mrs Nguyen lodged a Subclass 300 Prospective Marriage visa application on 14 July 2016. Mr Cuhadar travelled to Vietnam to see Mrs Nguyen for a month from 30 December 2016 to 28 January 2017. Subsequently, Mrs Nguyen’s Subclass 300 visa application was refused on 8 June 2017. Mr Cuhadar sought review of the delegate’s decision (Tribunal Matter No 1717302). He travelled to Vietnam for 3 weeks in January 2018 and he returned there again on 31 May 2018. The parties were married in Vietnam on 2 June 2018. Mr Cuhadar arrived back in Sydney on 15 June 2018. The Tribunal, differently constituted, remitted Mrs Nguyen’s Subclass 300 Prospective Marriage visa application to the Department on 9 July 2018 in light of the couple’s marriage in Vietnam on 2 June 2018. Mr Cuhadar travelled to Vietnam on 17 January 2019 for a fortnight’s stay there and he returned again later that year for 6 weeks in July 2019. Subsequently, he has travelled to Vietnam to be with his wife for 3 weeks in January 2020 and then, following the opening of international borders after the COVID-19 pandemic, he returned to Vietnam for: 5 weeks from 28 July 2022; 3 weeks in June 2023; and, 2 weeks in August 2023. Information in the Department’s Movement Records confirms Mr Cuhadar’s 11 trips to Vietnam since January 2015.

Decision

Reasons for decision

The application of the second named visa applicant, 25-year-old Thanh Phuong Trang Nguyen, is based on her being a member of the family unit of a person who meets the primary criteria. Accordingly, her application will be determined by reference to the outcome of Mrs Nguyen’s application on remittal to the Department for reconsideration. 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 of Schedule 2 to the Regulations; and, ·cl 309.221 of Schedule 2 to the Regulations.Katie MalyonMemberATTACHMENT - Extract from Migration Act 1958 and Migration Regulations 1994Migration Act 1958 …5F Spouse(1) For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.(2) For the purposes of subsection (1), persons are in a married relationship if:(a) shoot they are married to each other under a marriage that is valid for the purposes of this Act; and(b) they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and(c) the relationship between them is genuine and continuing; and(d) they:(i)live together; or(ii)do not live separately and apart on a permanent basis.(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.Note: Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.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).…Schedule 2 - Subclass 309 -- Partner (Provisional)309.1--Interpretation309.111 In this Part:"intended spouse" means the person referred to in subparagraph 309.211(3)(a)(i), (ii) or (iii).Note: eligible New Zealand citizen and guardian are defined in regulation 1.03, parent is defined in subsection 5(1) of the Act (also see regulation 1.14A), de facto partner is defined in section 5CB of the Act (also see regulation 1.09A), and spouse is defined in section 5F of the Act (also see regulation 1.15A).309.2 - Primary criteria309.21 - Criteria to be satisfied at time of application309.211 (1) The applicant meets the requirements of subclause (2) or (3).(2) The applicant meets the requirements of this subclause if the applicant is the spouse or de facto partner of:(a) an Australian citizen; or(b) an Australian permanent resident; or(c) an eligible New Zealand citizen.(3) The applicant meets the requirements of this subclause if:(a) the applicant intends to marry:(i) an Australian citizen; or(ii) an Australian permanent resident; or(iii) an eligible New Zealand citizen; and(b) the intended marriage will, if it takes place, be a valid marriage for the purposes of section 12 of the Act.Note: If the applicant is an applicant referred to in subclause 309.211(3), the marriage must have taken place before the applicant can be granted a visa of this subclass: see clause 309.224.309.212 (1) The spouse, de facto partner or intended spouse of the applicant is not prohibited by subclause (2) from being a sponsor.(2) The spouse, de facto partner or intended spouse is prohibited from being a sponsor if:(a) the applicant is a male person; and(b) the spouse, de facto partner or intended spouse is a woman who was granted a Subclass 204 (Woman at Risk) visa within the 5 years immediately preceding the application; and(c) on the date of grant of that visa:(i) the applicant was a former spouse or former de facto partner of that woman, having been divorced or permanently separated from that woman; or(ii) the applicant was the spouse or de facto partner of that woman and that relationship had not been declared to Immigration.309.213 (1) If the applicant is an applicant referred to in subclause 309.211(2), the applicant is sponsored:(a) if the applicant's spouse or de facto partner has turned 18--by that spouse or de facto partner; or,(b) if the applicant's spouse has not turned 18--by a parent or guardian of that spouse who:(i) has turned 18; and(ii) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.(2) If the applicant is an applicant referred to in subclause 309.211(3), the applicant is sponsored:(a) if the applicant's intended spouse has turned 18--by that intended spouse; or(b) if the applicant's intended spouse has not turned 18--by a parent or guardian of that intended spouse who:(i) has turned 18; and(ii) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.…309.22 - Criteria to be satisfied at time of decision309.221 The applicant continues to satisfy the criterion in clause 309.211.309.222 The sponsorship referred to in clause 309.213 has been approved by the Minister and is still in force.Note: Regulations 1.20J, 1.20KA and 1.20KB limit the Minister's discretion to approve sponsorships.309.223 In the case of an applicant who meets the requirements of subclause 309.211(2), the applicant continues to be the spouse or de facto partner of the person referred to in paragraph 309.211(2)(a), (b) or (c) who was the applicant's spouse or de facto partner at the time of the application.309.224 If the applicant is an applicant referred to in subclause 309.211(3), the marriage referred to in that subclause has taken place and the applicant continues to be the spouse of the intended spouse.309.225 The applicant:(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4009, 4020 and 4021 ; and(b) if the applicant had turned 18 at the time of application -- satisfies public interest criterion 4019.309.226 If the applicant has previously been in Australia, the applicant satisfies special return criteria 5001 and 5002.309.228 (1) Each member of the family unit of the applicant who is an applicant for a Subclass 309 visa is a person who:(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4009 and 4020; and(aa) if the person had turned 18 at the time of application, satisfies public interest criterion 4019; and(b) if the person has previously been in Australia, satisfies special return criteria 5001 and 5002.(2) Each member of the family unit of the applicant who is not an applicant for a Subclass 309 visa isa person who:(a) satisfies public interest criteria 4001, 4002, 4003 and 4004; and(b) satisfies public interest criterion 4007, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion.309.229 If a person (in this clause called the additional applicant):(a) is a member of the family unit of the applicant; and(b) has not turned 18; and(c) made a combined application with the applicant-- public interest criteria 4015 and 4016 are satisfied in relation to the additional applicant.oOOo

Ratio Decidendi

Legal Principle Established

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