Dau (Migration)

Dau (Migration) [2019] AATA 4331 (11 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Thuy Linh Dau
CASE NUMBER:  1808341
HOME AFFAIRS REFERENCE(S):           BCC2017/929869
MEMBER:Steven Griffiths
DATE:11 July 2019
PLACE OF DECISION:  Adelaide
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(2) of Schedule 2 to the Regulations
·cl.820.211(1) of Schedule 2 to the Regulations

Statement made on 11 July 2019 at 9:55am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – genuine and long-term spousal relationship – joint bank account – shared household expenses and responsibilities – parties represent themselves as being married to each other – joint social activities – significant emotional support and companionship – marriage certificate provided – mutual commitment to shared life to exclusion of all others – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 820.211, 820.221

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 Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant, Ms. Thuy Linh Dau, applied for the visa on 9 March 2017 on the basis of her relationship with her sponsor, Mr. Tuan Anh Ngo. 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 (the Regulations). The primary criteria must be satisfied by the applicant.
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 the spouse, as defined in s.5F of the Act, of the sponsor.
The applicant appeared before the Tribunal on 3 July 2019 to give evidence and respond to questions. The Tribunal also received oral evidence from the brother of the visa applicant and the cousin of the sponsor. The Tribunal hearing was conducted in the English and Vietnamese languages, with the assistance of an interpreter.
The applicant was represented by her registered migration agent, who attended the hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has taken into consideration all the evidence in the Department of Immigration file and Tribunal file, including additional information provided to the Tribunal and the evidence from the Tribunal hearing.
ISSUE
The issue in the present case is whether visa applicant is the spouse, as defined in s.5F of the Act, of the sponsor.
BACKGROUND OF THE EVIDENCE
Ms. Dau was born at Nghe An, Vietnam. Her parents, born 1975 and 1975, married 1992, live in Vietnam, with her brother, born 1993, living in Australia. She arrived in Australia on 18/4/16 as a TAFE student.
Mr. Ngo was born in Vietnam. His parents, born 1955 and 1959, married in 1976 and live in Vietnam, as do his sister and brother, born in 1980 and 1981. He first came to Australia as a student in 2009, staying until 2012 and returned to Australia in April 2016. He is a permanent Australian resident with a Vietnamese passport.
INFORMATION TO THE TRIBUNAL
Since the Department made a decision the sponsor has provided further information to the Tribunal including:-
OPTUS telephone accounts for June and August 2018
Car registration
PAYG statement to 30/6/18 for the visa applicant
ANZ Access Advantage Statements in joint names
Invoices in joint names and joint address
Medicare Card for the visa applicant
Australia post packages, in joint names to joint address
Photos on relationship & household activities
Form 888 Statement by friend of sponsor
Form 888 Statement by cousin of sponsor
Form 888 Statement by wife of cousin of sponsor
Statement by brother of visa applicant
Photos of the parties socializing
Statement by sponsor dated 19/7/18
Migration Agent submission dated 20 June 2019
Statutory Declaration by visa applicant dated 19/6/19
Is the sponsor an Australian permanent resident?
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. The Tribunal was provided with evidence, which it accepts, of Australian permanent residency for the sponsor and finds the sponsor to be an Australian permanent resident.
Whether the parties are in a spouse or de facto relationship
‘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 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?
At the time the visa application was made the visa applicant provided evidence of being married to the sponsor with an Australian Marriage Certificate as evidence of their marriage on 23 December 2016.
The Tribunal has regard to the document and finds that the parties are married to each other at the time of the visa application and this decision, with the marriage valid for the purposes of the Act as required by s.5F(2)(a).
CLAIMS AND FINDINGS
Financial aspects of the relationship that must be considered include:-
(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 expense
The Tribunal accepts that at the time of the visa application and this decision, no real estate or other major assets are held by the parties.
The Tribunal accepts that the time of the visa application and this decision, no joint liabilities are held by the parties.
The Tribunal accepts that at the time of the visa application and this decision, none of the parties has a legal obligation with regard to the other.
The visa applicant has recently completed her studies with Adelaide TAFE and has worked 20 hours per week for 2 years as a nail technician.
The sponsor has spent significant time over the last 2 years in Vietnam working in the family real estate and car sales business, as his father has been unwell and it has been necessary for him to assume a significant role.
The Tribunal accepts the oral evidence of the parties, confirmed independently, that the sponsor will finish the requirement to work extensive periods in Vietnam by the end of 2019 and will be living in Australia full-time form that time forward.
The Tribunal accepts the documented evidence of a joint bank account into which both contribute funds used by the parties to pay for expenses in Australia and determines, at time of application and this decision, the joint account to represent the pooling of financial resources. .
The Tribunal accepts that the parties with the use of the joint bank account, determines at the time of application and this decision, share day-to-day household expenses.
Nature of the household aspects that must be considered include:-
(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
The Tribunal accepts that the parties do not have children, and while they have occasional cared for the child of the cousin of the sponsor, they have not had any joint responsibility for the care and support of children.
The Tribunal accepts the documented and oral evidence that since June 2016 the parties have lived together in a share home, owned by the cousin of the sponsor, with the cousin and his family and the brother of the visa applicant.
The Tribunal accepts the documented and oral evidence that the sponsor has spent considerable time working in Vietnam for his parents business, with the visa applicant remaining in the shared home.
The Tribunal accepts the oral evidence, confirmed independently, that the ambition of the parties is to open a grocery business and purchase a home.
The Tribunal accepts the photographic and oral evidence that at the time of application and this decision the parties share the responsibility for housework.
Social aspects of the relationship that must be considered include:-
(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
The Tribunal accepts the photographic and oral evidence, confirmed independently by the parties and attending witnesses, that at the time of application and this decision the parties represent themselves to other people as being married.
The Tribunal accepts the photographic, oral evidence and written statements of friends and acquaintances that at the time of application and this decision they support the parties relationship and marriage.
The Tribunal accepts the photographic and oral evidence, confirmed by the parties independently, of the names of the family and friends of the visa applicant and sponsor who attended their wedding in Australia, and ceremony in Vietnam, and determines this to express support for the relationship and marriage at the time of application and this decision.
The Tribunal accepts the oral evidence of the parties, and the statements of witnesses, of the planning and undertaking of joint social activities in Australia and Vietnam with family and friends and determines this to have been in place at time of application and this decision.
The Tribunal determines that, at the time of application and this decision, the parties are in contact every day and have a good knowledge of what the other does.
Nature of the commitment to each other areas that must be considered include:-
(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.
The Tribunal accepts the evidence that the parties met initially in April 2016, lived together from June 2016, became engaged on 12 November 2016 and married on 23 December 2016 in Australia, with a wedding ceremony also held in Vietnam in February 2018.
The Tribunal accepts the photographic and oral evidence of the parties and witnesses that the wedding on 23 December 2016 was arranged quickly, with the parents and brother of the visa applicant and the sponsor having his cousin and wife in attendance.
The Tribunal accepts that over the last 2 years the sponsor has been required to spend considerable time in Vietnam assisting his father with the family business, with the sponsor spending all other time in Australia living with the visa applicant.
The Tribunal accepts the oral evidence, confirmed independently, of occasions in which the sponsor and visa applicant have been in Vietnam together and stayed with family members.
The Tribunal accepts the oral evidence, confirmed independently, that the sponsor will be living in Australia with the visa applicant full-time from the end of 2019 when his commitments to his parents business are completed.
The Tribunal accepts the documented and oral evidence of the parties of the contact made with each other several times per day while the sponsor was in Vietnam.
The parties gave oral evidence independently, which the Tribunal accepts, of plans for their future together in Australia, with work and business opportunities the sponsor and visa applicant will pursue.
The Tribunal accepts the documented and oral evidence of regular contact between the parties and determines, at the time of application and this decision, the parties provide a significant level of companionship and emotional support to each other.
The Tribunal determines that the parties, at the time of the visa application and this decision, have had and continue to have an ongoing commitment to each other and see the relationship as being long-term.
Other circumstances of the relationship
The Tribunal accepts the oral evidence of the parties that while the parents of each supports and encourages the relationship and marriage, that the parents are in dispute about a wedding ceremony in Vietnam and that one was held in early 2018 at the home of the visa applicants’ family, with the sponsors’ family not attending.
The Tribunal notes that the sponsor had lived in Australia from 2009 to 2012 while studying, then returned to Vietnam and moved to Australia, as a permanent resident, from April 2016.
The Tribunal considered all the evidence on the circumstances of the parties and determines that the evidence supports a finding that, at the time of the application and this decision, the parties have had and continue to have a mutual commitment to a shared life together as a married couple to the exclusion of all others, with the relationship genuine and continuing.
The Tribunal accepts that the parties have been in a committed relationship since June 2016, became engaged on 12 November 2016, married on 23 December 2016 and do not live separately and apart on a permanent basis.
On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made and the time of this decision. The Tribunal is further satisfied the sponsor was not prohibited by subclause (2B) from being a sponsoring partner.
The applicant therefore meets cl.820.211(2)(a). The Tribunal accepts the applicant was sponsored and therefore meets cl.820.211(2)(c), and as she was the holder of a substantive visa at the time of application, cl.820.211(2)(d) does not apply. Accordingly, the applicant meets cl.820.211(2). The applicant continues to meet these requirement at the time of decision and therefore meets cl.820.221(1).
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
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(2) of Schedule 2 to the Regulations
·cl.820.221(1) of Schedule 2 to the Regulations
Steven Griffiths
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).

[2019] AATA 4331

11 July 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies