Dang (Migration)

[2021] AATA 2298

Dang (Migration) [2021] AATA 2298 (21 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Thi Ai Diem Dang

VISA APPLICANT:  Mr Viet Phi Vo

CASE NUMBER:  1805810

DIBP REFERENCE(S):  BCC2017/1614871

MEMBER:David Crawshay

DATE:21 June 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the 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 21 June 2021 at 5:25pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – spouse or de facto partner – validly married – limited joint finances and progress forming common household while applicant in home county – represented as married only to members of family – nature of commitment – improvement in sponsor’s mental health – consistent, credible and compelling evidence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 309.211(2), 309.221

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 Immigration on 23 January 2018 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 5 May 2017 on the basis of his relationship with his 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because the delegate considered that the evidence provided was not sufficient to demonstrate that the visa applicant was the spouse of the review applicant.

4. The review applicant appeared before the Tribunal on 17 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and from Ms Xuan Thao Nguyen who is the review applicant’s daughter.

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 visa applicant was the spouse of the review applicant under s.5F of the Act at the time of applicant and whether he continues to be the spouse of the review applicant at the time of this decision.

   Whether the parties are in a spouse or de facto relationship

7. Clause 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.

8. “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 of 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.

   Are the parties validly married?

9. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal has seen a copy of a marriage certificate in a language other than English, the translation of which states that the parties’ marriage was registered on 24 January 2017 by the People’s Committee of Bien Hoa City. The Tribunal is satisfied that the certificate is genuine and that the parties were free to marry each other. 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).

   Are the other requirements for a spouse relationship met?

   Financial aspects of the relationship

10. The review applicant told the Tribunal that the parties do not share any joint real estate or other assets, nor do they have any joint liabilities. She said that she remits money to the visa applicant and that the parties have travel money cards which the parties use when the review applicant is in Vietnam, but which is also used by the visa applicant for expenses such as rent when the review applicant is in Australia. The visa applicant spoke in substantially similar terms.

11. The Tribunal notes evidence provided to it by the parties that shows a number of money transfers being made in 2016, comprising a substantial sum of money in total. It has also considered a statement from a travel money card for a period from October 2016 until July 2018showing regular deposits being made in AUD and withdrawals made in VND. The Tribunal notes that most withdrawals were made when the review applicant was in Australia. The evidence from the review applicant was that this money was given to the visa applicant in order for him to use and also to give over to her parents and to charity. She told the Tribunal that she did this because she trusted the visa applicant.

12. Based on this evidence, the Tribunal finds that the parties do not have any assets or liabilities. It finds that they do not owe any legal obligations in respect of the other party. It finds that the review applicant transfers money to the visa applicant, initially by formal remittals of money and then through a travel card, that these transfers of money are substantial in total and that the visa applicant uses these transfers to pay for everyday expenses such as rent. The Tribunal gives this evidence weight as the only practical way that the parties were able to integrate their finances given they lived in separate countries.

13. The Tribunal finds that the evidence indicates the parties have been in a genuine and continuing relationship at the time of application and at the time of this decision.

    Nature of the household

14. The review applicant has a child – a daughter who is of adult age who has yet to meet the visa applicant. There is no evidence to suggest that the visa applicant has any joint responsibility for the care and support of the her.

15. Regarding the parties’ living arrangements, the Tribunal notes that they have lived apart from each other except for periods of time where the review applicant has visited the visa applicant in Vietnam. According to evidence such as boarding passes and Department records, the review applicant has travelled to Vietnam – in December 2016/January 2017 for 37 days; in August 2017 for seven days; in July/August 2018 for 17 days; and in December 2019/January 2020 for 16 days. The review applicant said that during these visits she would stay with the visa applicant mainly in hotels. For this reason, she said that there was not much sharing of housework.

16. Based on the evidence relating to the nature of the parties’ household, it appears that the parties have made only limited progress in forming a common household, although the Tribunal notes the limited ability they have had to do so given that they live in separate countries. For this reason, it gives this evidence limited weight of an adverse nature.

    Social aspects of the relationship

17. The parties told the Tribunal at hearing that the parties celebrated an engagement ceremony on 3 January 2017 at the house of the review applicant’s mother and a wedding ceremony on 16 January 2017 at a restaurant in Bien Hoa. The review applicant said that the parties socialise with her younger sister. The visa applicant told the Tribunal that the parties spend their time visiting relatives on both sides.

18. The Tribunal had the benefit of hearing from the review applicant’s daughter at hearing.

    
    

    Ms Xuan Thao Nguyen told it that she first heard of the parties’ relationship in early-2016 before the review applicant went to Vietnam to visit the visa applicant. She said that she communicated with the review applicant while the latter was overseas. She said that she thought about going over for the wedding but was undertaking a summer course at university. When asked what marked the relationship as being genuine, Ms Nguyen said that she had noticed changes in the review applicant’s mental health. She said that, whereas the review applicant’s mental health was “really bad” after her relationship with her ex-spouse, when she met the visa applicant she became more independent and able to come out of her comfort zone. She said that the review applicant had taken care of all the responsibilities when Ms Nguyen was growing up, leaving the review applicant with no friends and no chance to go anywhere. She said that, after meeting the visa applicant, the review applicant wanted to go travelling. She said that this was something that “could not be faked”.

19. The Tribunal notes that this testimony is in similar terms to a statutory declaration given by Ms Nguyen in November 2020. In that declaration, Ms Nguyen wrote that she had witnessed the review applicant videocalling the visa applicant several times a week and had had many conversations with him herself. She wrote that the visa applicant had been wonderful and patient with the review applicant.

20. The Tribunal has seen several photographs of the parties together by themselves and with third parties who are most likely members of their families. They are seen having meals and engaging in social activities.

21. The Tribunal has considered the above evidence. It has had particular regard to the evidence of Ms Nguyen whom it found to be a compelling and credible witness. Based on this evidence, it accepts that while the parties have only represented themselves to a limited number of people, mainly comprising members of their families, and while they are recognised by few people as being in a married relationship, this level of representation and recognition is sufficient to satisfy it that the parties are in a genuine and continuing relationship.

    Nature of the parties’ commitment to each other

22. The Tribunal heard from the parties at hearing that they met online through Facebook in 2015 when the visa applicant connected with the review applicant and she commented on a post that he had written about caterpillar fungus. The parties said that there was some chatting between them before the review applicant travelled to Vietnam in March 2016. The parties said that the review applicant went on a trip with her younger sister as well as with the son and daughter-in-law of the younger sister. They said that the group picked up the visa applicant from his house and went travelling to Da Lat and Vung Tau. The parties said that after this they went to Thailand for four days at the end of that trip in April 2016 before the review applicant returned to Australia. The parties said that they committed to each other during that trip to Thailand.

23. The parties claim to have communicated to each other via Facebook Messenger and by mobile telephone until the review applicant next went to Vietnam in December 2016. It was during this trip that the parties claim to have celebrated their engagement and wedding ceremonies.

24. The Tribunal has had regard to this evidence. It notes that the testimony of the parties was consistent with each other and with what they have claimed in written documents. Based on this, the Tribunal accepts that they met each other as claimed and that their relationship developed as claimed. It accepts that they committed to each other in April 2016. The Tribunal accepts that during the time of their relationship, the parties lived with each other mostly in hotels.

25. Turning to the degree of companionship and emotional support that the parties draw from each other, the review applicant spoke about how the visa applicant has encouraged her to live happily in harmony with other people. The visa applicant said that the parties have similarities. He said that every time the parties meet each other they are very happy. Both parties commented on how the other party has a gentle nature. They said that they are similar people. The Tribunal has also considered that the parties displayed a detailed knowledge of each other’s daily lives when questioned at hearing. Lastly, it has considered the evidence of the review applicant’s daughter, Ms Nguyen.

26. The Tribunal has considered this evidence and accepts that they have drawn a substantial degree of companionship and emotional support from each other during their relationship, including at the time of applicant and at the time of this decision. It accepts that they view their relationship as a long-term one at these times.

    CONCLUSION

27. Given the above findings, the Tribunal is satisfied that the parties’ relationship was genuine and continuing, they had a commitment to a shared life together as a married couple to the exclusion of all others and they did not live separately and apart on a permanent basis at the time of application. They therefore satisfy s.5F(2)(b), s.5F(2)(c) and s.5F(2)(d) at that point. As above, the Tribunal has found that the parties were married to each other under a marriage that is valid, and s.5F(2)(a) is satisfied. The requirements of s.5F(2) are met at the time of application and the parties were in a married relationship at that point. Because they were in a married relationship, the visa applicant meets the definition of “spouse” under s.5F at the time of application, and meets cl.309.211(2) and therefore cl.309.211.

28. Because the visa applicant continues to meet the requirements of s.5F(2) at the time of this decision, the parties are in a married relationship and the visa applicant meets the definition of “spouse” under s.5F. He therefore meets cl.309.221.

29. 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

30. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the 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.

    David Crawshay
    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).