Dinh (Migration)

[2024] AATA 3061

Dinh (Migration) [2024] AATA 3061 (19 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Thi Kim Yen Dinh
Ms Ngoc Bao Han Nguyen

CASE NUMBER:  2118862

HOME AFFAIRS REFERENCE(S):          BCC2019/3707007

MEMBER:Peter Emmerton

DATE:19 August 2024

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl 820.211 of Schedule 2 to the Regulations

·cl 820.221 of Schedule 2 to the Regulations

·reg 2.03A

Statement made on 19 August 2024 at 10:34am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine de facto relationship – financial aspects – nature of the household – social aspects – nature of the commitment – 12-month requirement – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB,65
Migration Regulations 1994 (Cth), rr 1.09A, 2.03A; Schedule 2, cls 820.211, 820.221

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 Home Affairs to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant (the applicant) applied for the visa on 26 July 2019, 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 they were not satisfied that they were in a genuine spousal relationship.

4. The applicants were not represented in relation to the review.

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 couple are in a genuine spousal relationship as defined by 5F of the Act.

7. In determining the applicants’ claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in doing so, the Tribunal is aware of the need and the importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their individual circumstances.

8. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the Department.

9. The Tribunal has read and carefully considered all the evidence submitted to the Department and the delegate.

10. The Tribunal has read and carefully considered all the additional evidence presented to It as detailed below.

    ·     Statutory Declaration, Brett Featherby, Police Officer

    ·     Statutory Declaration, Graham Puckridge, Retired Police Officer

    ·     Statutory Declaration, Richard Murphy, Retired Police Officer

    ·     Wedding photos (21), Statutory Declaration, Christopher Cowdrey, Retired Police Officer

    ·     22 JP-Witnessed Photographs

    ·     Statutory Declaration of Thi Kim Yen DINH

    ·     Evidence of school confirmation of student status, Ngoc Bao Han Nguyen

    ·     Vehicle Registration

    ·     Joint Utilities and banking information

    ·     Travel and photographic evidence

    ·     Copies of statutory declarations and photographs received prior

    Whether the parties are in a spouse or de facto relationship

11. Clauses 820.211 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 citizen.

    Are the parties in a de facto relationship?

12. 'De facto partner' is defined in 5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s 5CB(2).

13. In forming an opinion whether they are in a de facto relationship consideration must be given to all 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 1.09A(3) which is attached to this decision. Each of the specific matters contained in reg 1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the other requirements for a spouse relationship met?

14. The review applicant lodged a valid application for a Partner (Temporary) (Class UK) (Subclass 820) and Partner (Residence) (Class BS) (Subclass 801) visa on 26 July 2019.

15. The Tribunal has viewed the Passport details and reviewed the Departmental immigration data for both the sponsor and the visa applicant and has verified they are substantially therefore beyond the age of 18.

16. The Tribunal has considered the documentary evidence provided to both the Department and the Tribunal. The Tribunal has had the benefit of a significantly greater volume of relevant evidence presented to it than was afforded the delegate in the original application process and the subsequent request for further information.

17. The Tribunal has considered all aspects of the relationship. The Tribunal notes that in the period between the delegate’s decision, slightly less than 3 years ago and the review before the Tribunal, it has been possible for the parties to gather and present additional relevant evidence for consideration. It also notes the Covid-19 pandemic may have made it far more difficult to amass substantial evidence in support of the couple’s case for a period of time, as a direct result of the societal changes associated with isolation norms.

    Financial Aspects

18. In relation to the financial aspects of the relationship between the applicant and the sponsor, the Tribunal has considered joint asset ownership, joint liabilities, pooling of financial resources, legal obligations and the sharing of daily household expenses. The delegate was not satisfied that the couple had demonstrated that the financial aspects of the relationship were consistent with two people in a genuine and continuing relationship as insubstantial evidence was provided.

19. The Tribunal accepted into evidence a range of documents, which in addition to the scant evidence available to the delegate at the time of the original decision, demonstrate a substantial degree of financial inter-dependence. This evidence also demonstrated the visa applicant’s child living with the couple.

20. The joint bank account statement clearly demonstrates the pooling of financial resources as a couple since 10 June 2021. They demonstrate a substantial balance and considerable movement in and out of the account.

21. Registration details for 2 vehicles and a caravan have been provided. They indicate they are jointly owned by the couple.

22. The Tribunal notes the car insurance policy indicating both parties are on the policy.

23. Family billing from Woodville High School was tendered for their child indicating both of the couple are the joint responsible parents.

24. The home in which they both reside is still in the sponsor’s name and a satisfactory explanation was provided in the applicant’s Statutory Declaration. It is accepted they intend to sell the house in the near future. It would make no sense to incur the exorbitant transfer taxes required by the SA Government if they transferred into joint ownership prior to that point.

25. Rate book listing payments until June 2023 clearly shows both names at the property address known as their residence.

26. Origin Electricity bill and Origin Gas bill show both the sponsor and the applicant as being jointly responsible at their residential address.

27. The SA Water account is a joint legal responsibility, the account is in both party’s names.

28. The ATO Tax Return for the sponsor indicates the applicant as his spouse and this was attested to by their taxation accountant.

29. The SA Police Super fund has provided a letter dated 2 June 2023 in which they acknowledge the applicant is the beneficiary of his Superannuation benefits from 23 September 2021 and that they were informed the relationship commenced on 1 September 2017.

30. The Tribunal places substantial weight on the forementioned evidence. It is satisfied that the applicants demonstrated that the financial aspects of the relationship were consistent with two people in a genuine and continuing relationship.

    Nature of the Household

31. When assessing the nature of the household the Tribunal has considered the domestic living arrangements, shared household duties, daily routines and caring for children. The delegate was not satisfied that the couple were able to demonstrate the nature of their household was consistent with two people in a genuine and continuing spousal relationship, as minimal evidence was provided.

32. There is substantial evidence of the long-term living arrangements of the couple in the form of photographs, personal statements, and a range of Form 888 / Statutory Declarations from family and friends. It is noted most of the Statutory Declarations are made by serving or retired members of the Police Force who have had a long-term relationship as friends and colleagues with the sponsor and are acquainted with the visa applicant. These statements are accepted as both accurate and concrete evidence in support of the couple. The Tribunal further notes that in its experience Police officers have a strong view of the importance of truth telling and dishonesty if observed has a disproportionately severe impact should they be found to have not told the truth.

33. The large and diverse range of documents provided to the Tribunal covered in paragraphs 20-29 of this decision indicate the applicant and sponsor have jointly lived at the same address for a substantial period of time.

34. The household roles and their application in relation to the sponsor and the applicant were discussed in substantial depth in their individual statements to the Tribunal. It is noted that whilst the statements are complimentary, they are not a copy in style nor in identical substance. Details about sharing the of household duties between the couple and their lives together were written in a manner that strongly suggests a couple working in unison to secure their future. They clearly elaborated on their future vision for their lives together.

35. It is accepted that there is 1 child associated with this union. It accepts the Statutory Declaration statements and photographic evidence supplementing the engagement of the applicant with the extended family of the visa applicant as well as the teenage child of the visa applicant.

36. It notes the 3 documents from the school where the child of the applicant (secondary applicant) attends. They clearly show a financial commitment shared by the couple. In addition, the dual legal relationship and responsibility is indicated in the school’s documentation.

37. Statutory Declarations/statements made by long-term friends and colleagues of the sponsor indicate a clear belief that the couple live as a committed partnership in a genuine relationship. The Tribunal is convinced by the recounting of the intertwining of the couples lives with the important events affecting their respective families. Again, it is understood the signing of such documents has additional implications upon police officers, current or retired.

38. The extensive photographic evidence adds substantial weight to the assertion this is a genuine relationship centred household. The composition of the photographs including friends, family and work colleagues would be difficult to convincingly stage across such a large range of pictures, locations and events.

39. The Tribunal places substantial weight on this evidence. The Tribunal is satisfied the applicants have demonstrated the nature of the household is consistent with two people in a genuine and continuing relationship, in a family structure involving a child, for a demonstrably substantial time.

    Social aspects

40. In assessing the social aspects of the relationship, the Tribunal has considered social interactions, evidence of joint social activities, representation of their relationship to others and recognition of the relationship by friends and family. The delegate was not satisfied that the couple had demonstrated that the social aspects of the relationship were consistent with two people in a genuine and continuing relationship as no documentary evidence was provided.

41. The applicants as already stated submitted a substantial and diverse range of photographic evidence showing what appear to be largely spontaneous snap shots of various social activities, travel overseas and within Australia, as well as important life events. These photographs were corroborated by some additional evidence supporting their composition for example statements made by associates or annotation of photographs.

42. The Tribunal additionally notes the content of the Statutory Declarations which indicate a clear understanding of the couple and their family unit.

43. The documentary evidence demonstrates the fact that the sponsor and the applicant are perceived by a range of individuals and institutions, as a family unit. This is further demonstrated by the inclusion of family members and close friends in a range of different social circumstances. Some a little formal whilst others are less formal, as is to be expected of a genuine couple undertaking their family and life journey together.

44. The Tribunal places substantial weight on this evidence. The Tribunal is satisfied that the applicant and the sponsor demonstrated that the social aspects of the relationship were consistent with two people in a genuine and continuing relationship.

    Nature of the Commitment

45. In relation to the nature of the commitment, the Tribunal considered the nature of the parties first meeting, relationship development, length of time living together, degree of companionship and mutual emotional support and whether they see the relationship as long term. The delegate was not satisfied that the couple saw the relationship as a long-term one, that they draw emotional support and companionship from each other or that there is a commitment to a shared life together.

46. In regards, to the development of the relationship, the Tribunal again notes and accepts the multiple personal statements of support alongside Statutory Declarations made by the couple which provide a similar view of their commitment to each other. It is noted by the Tribunal that whilst they interlock, they are from diverse origins and as such each provide a different point of reference and perspective. The Tribunal again notes the intersection of their relationship development statements and the perceptions of the sponsor’s work colleagues past, friends and family in this regard referencing a substantial period.

47. The photographic evidence previously mentioned further supports the assessment of a mutually nourishing relationship.

48. Much of what has been presented photographically and in written form put on public display very intimate events in a family’s life.

49. The Tribunal has placed substantial weight on this evidence.

50. For all of the above reasons, the Tribunal is satisfied that at the time of application and at the time of decision, the visa applicant and the sponsor were in a genuine and continuing relationship and have a mutual commitment to a shared life to the exclusion of all others, and lived together, or not separately and apart, on a permanent basis.

51. On the basis of the above the Tribunal is satisfied that the requirements of s 5CB(2) are met at the time the visa application was made and the time of this decision.

52. Therefore, the applicant meets cl 820.211(2) and cl 820.221.

    Are the additional criteria for a de facto relationship met?

53. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in reg 2.03A. Both members of the couple must be at least 18 years old: reg 2.03A(2). In this case, at the time of application, the applicant and the sponsor were at least 18 years old. This clearly substantiated with the evidence provided by the Departmental documentation.

54. The applicant must have been in the de facto relationship for at least the 12-month period ending immediately before the date of the application: reg 2.03A(3). This requirement will not apply in limited circumstances, such as: where the de facto relationship has been registered under a relevant State or Territory law (for applications made on or after 9 November 2009); where the applicant can establish compelling and compassionate circumstances for the grant of the visa; or in certain circumstances where the sponsor held, holds or is applying for a permanent humanitarian visa.

55. There is no evidence that the relationship is registered under a relevant State or Territory law or that the sponsor held, holds or is applying for a permanent humanitarian visa, so they must meet the 12-month requirement. The Tribunal has cross referenced the statements and Statutory Declarations made by the couple, friends and family, Police Super Fund legal documentation and it has subsequently formed a clear view the couple were in a demonstrable de facto relationship from at least mid-late 2017 or potentially earlier.

56. In addition, the assertions made regarding the commencement of the relationship aligns with the Departmental travel information documentation associated with this applicant and the sponsor. This meets the requirement of being in the de facto relationship for at least the 12-month period ending immediately before the date of the application: reg 2.03A(3). Date of application was 26 July 2019. Accordingly, the Tribunal is satisfied that the applicant and the sponsor had been in the de facto relationship for at least the 12-month period ending immediately before the date of the application.

57. For these reasons the Tribunal is satisfied that the applicant meets the additional criteria prescribed in reg 2.03A.

58. 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

59. 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

    ·cl 820.221 of Schedule 2 to the Regulations

    ·reg 2.03A

    Peter Emmerton
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.09A     De facto partner and de facto relationship

    (1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.

    Note 1     See regulation 2.03A for the prescribed criteria applicable to de facto partners.
    Note 2     The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
    Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).