DANG (Migration)

[2022] AATA 4636

DANG (Migration) [2022] AATA 4636 (9 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Hoai Thu Dang

REPRESENTATIVE:  Mr Michael Cai (MARN: 1799864)

CASE NUMBER:  1821531

HOME AFFAIRS REFERENCE(S):          BCC2017/3144933

MEMBER:Moira Brophy

DATE:9 November 2022

PLACE OF DECISION:  Sydney

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 of Schedule 2 to the Regulations; and

·Cl 820.221 of Schedule 2 to the Regulations.

Statement made on 09 November 2022 at 12:28pm

CATCHWORDS  
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – 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 
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 820.211, 820.221 

CASES 
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 30 August 2017 on the basis of her relationship with her sponsor. 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 delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211 because the delegate was not satisfied that the visa applicant was in a genuine and continuing relationship with her sponsor.

4. The applicant, Ms Hoai Thu Dang appeared before the Tribunal on 7 November 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Mr Trung Hieu Bui.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

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

   Background

7. The applicant, Ms Hoai Thu Dang is a 27-year-old female currently residing in Sydney. She has declared no previous relationships.  Her parents and one sister live in Vietnam.

8. The sponsor, Mr Trung Hieu Bui is a 36-year-old male living in Sydney.  He was previously married to Ms Song Hai Uyen Nguyen in the period from 15 October 2011 to 15 November 2015. He was born in Vietnam and came to Australia on 8 November 2008.  He was sponsored by Ms Nguyen on a Partner (subclass 820) visa granted on 2 April 2012. He was granted a subclass 801 visa on 26 March 2014, and he was granted a resident Return (subclass 155) visa on 26 March 2019. His parents and two brothers are residing in Vietnam.

9. At the time of application, the parties stated they met on 12 May 2013. They commenced dating and they committed to a shared life to the exclusion of all others on 20 July 2014. They were married in Vietnam on 1 December 2015, and they married in Australia on 26 February 2017.

   Consideration of claims and evidence

   Tribunal proceedings

10. In making its findings, the Tribunal has considered documents contained in the Department and Tribunal files and oral evidence provided by the visa applicant and sponsor at the hearing.

11. The parties gave coherent oral evidence about the circumstances in which they met, the development of their relationship and their current living arrangements.

12. The Tribunal accepts the parties’ oral evidence that they met in person on 12 May 2013.  They committed to a relationship with each other to the exclusion of all others on 20 July 2014. Their first child was born on 13 April 2015.  They were married on 1 December 2015 in a cultural ceremony in Vietnam and they registered their marriage in Australia following a civil ceremony on 26 February 2017. They lodged this application on 30 August 2017.

13. Their first child, Sophia was born at Fairfield District Hospital on 13 April 2015, their second child, Emma was born at Bankstown Hospital on 24 April 2017 and their third child, Olivia was born at Bankstown Hospital on 15 January 2019.

    Whether the parties are in a spouse or de facto relationship

14. 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 permanent resident.

15. ‘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 parties’ household and their 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.

    Are the parties validly married?

16. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. There is nothing in the information before the Tribunal to cast doubt on the validity of the parties’ marriage on 26 February 2017 and it was not disputed by the delegate. Consequently, in the absence of any evidence to the contrary, the Tribunal finds 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

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

18. The parties reside together in a home that was purchased by the sponsor in late 2018.  They initially moved into the house but when the sponsor lost his business because of Covid, they rented out their house and moved to less expensive accommodation. They have recently moved back into their house and are living there with their three daughters. The parents of the sponsor are also living with them at the moment as they are in Australia on Visitor visas.

19. After not having worked during Covid, the sponsor has recently commenced work as a driver with Cleanaway. He works five to six days per week and is paid around $1500 per week depending on number of hours worked. His pay is electronically transferred into an account in his name. The applicant works three days a week as a nail technician. She works Friday to Sunday inclusive and is paid $500 into an account in her name.

20. The sponsor is in receipt of family tax benefits payments from Centrelink, and these are paid into an account in his name.

21. While the Tribunal accepts the joint account was closed by the bank and not by a decision of the parties to that account, the Tribunal was concerned there had been no attempt by the parties to pool resources at another institution.

22. The parties gave consistent evidence that the mortgage payments were deducted from the sponsor’s account. Their evidence as to the amount of the mortgage was consistently vague as was their evidence as to how they purchased a $1600000 property. It was evident that they receive large amounts of money from the sponsor’s parents.  Their evidence as to who pays other expenses at the property was inconsistent, with the applicant saying the sponsor handles all those costs from his account, and the sponsor saying the applicant met those costs from her account.

23. A perusal of the bank statements provided is indicative of each party meeting day-to-day expenses from their personal accounts.

24. They presently do not have any joint real estate as the house is in the name of the sponsor only. The parties gave consistent evidence that this was due to stamp duty because of the applicant not having permanent residency. They presently do not have any savings. They do not have any joint liabilities. 

25. The Tribunal carefully considered the evidence as to whether the financial arrangements were consistent with the parties being in a genuine and continuing relationship as the parties were reticent when asked specific questions as to their finances. The Tribunal was concerned there were large amounts of money being paid into accounts and off the mortgage that were in excess of their stated earnings. The Tribunal also appreciates that the parties experienced significant financial difficulties during Covid and has considered this period of difficulty could impact on their financial decision making.

26. Overall, the Tribunal finds the financial aspects of the parties’ relationship are not consistent with their being in a genuine spousal relationship both at the time of application and at the time of decision.

    Nature of the household

27. In considering the nature of the household, the Tribunal has considered the evidence including any joint responsibility for care and support of children; the parties' living arrangements; and any sharing of housework.

28. The Tribunal accepts the parties have lived together on a continuing basis since 2014.

29. The parties provided consistent and convincing evidence regarding the arrangements for their household. The applicant is responsible for the majority of the household chores, the cooking, and the washing.

30. They have three young daughters, and the applicant tends to the majority of their caring needs. During Covid when the sponsor was not working, he was more involved with the running of the household and the care of the children. His working hours now preclude him from the same level of involvement.

31. The evidence of the establishment of a joint household provides significant weight in support of the finding of a genuine and continuing relationship.

32. The Tribunal finds the nature of the household is consistent with their being in a genuine spousal relationship at the time of application and at the time of decision.

    Social aspects of the relationship

33. In considering the social aspects of the relationship, the Tribunal has considered 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.

34. The parties provided a number of statutory declarations from family and friends which attested to the genuineness of the relationship. The information in these declarations is consistent with the other evidence before the Tribunal.

35. The parties provided documentary evidence to support their oral evidence at the hearing that they have enjoyed trips together to Vietnam to visit the applicant’s and sponsor’s families.

36. On the basis of the oral evidence of the parties and the evidence provided by way of photographs, the Tribunal finds that the relationship between the visa applicant and her sponsor is recognised and supported by their family and friends. The Tribunal is satisfied that the parties represent themselves as being married to one another to their family, friends, and the wider community.

37. The Tribunal finds the social aspects of the relationship are consistent with their being in a genuine spousal relationship at the time of application and at the time of decision.

    Nature of the persons’ commitment to each other

38. In considering the nature of the persons' commitment to each other, the Tribunal considered 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.

39. The Tribunal finds that the visa applicant and her sponsor have been in a committed relationship since they met in 2013. They have lived together continuously since 2014. The Tribunal was mindful the sponsor was not divorced from his first wife until November 2015.

40. The parties were familiar with the details of each other’s family and with each other’s daily work schedules.

41. While the Tribunal had some concerns as to the financial aspects of the relationship, especially given the reluctance of the parties to answer questions pertaining to these aspects, the Tribunal was mindful there were three very young children who were Australian citizens. Their interests and needs are best served by their parents being together in Australia.

42. The parties demonstrated a detailed knowledge of each other’s lives and daily routines. Their evidence about their future was consistent. The Tribunal is satisfied that the applicant and her partner are committed to being in a long-term relationship. The degree of companionship and emotional support the parties clearly draw from one another provides significant weight in support of the finding that the parties are in a genuine and continuous relationship.

    CONCLUSION

43. The Tribunal has had the benefit of receiving oral evidence in person from the parties, as well as seeing the parties interact with each other. It has also received a considerable amount of additional information that was not before the delegate. The Tribunal accepts the parties were inexperienced and that led to them not understanding the type of documentation required by the original decision maker.

44. Given these findings, the Tribunal is satisfied that at the time of application, the parties were in a genuine and continuing relationship, and at the time of this decision, the parties are validly married, have a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing. The Tribunal is satisfied the parties live together and therefore do not live separately and apart on a permanent basis.

45. Accordingly, the Tribunal finds that the applicant satisfies the definition of ‘spouse’ in s 5F(2)(a)-(d) and the parties are in a spousal relationship.

46. As the requirements of cl 820.211(2) are met, the Tribunal finds that cl 820.211 is satisfied.

47. The Tribunal further finds that at the time of the Tribunal's decision, the applicant continues to be the spouse of the sponsor and continues to meet the requirements in cl 820.211(2), thus satisfying cl 820.221(1).

48. 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

49. 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 of Schedule 2 to the Regulations; and

    ·Cl 820.221 of Schedule 2 to the Regulations.

    Moira Brophy
    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).