Dinh (Migration)

[2021] AATA 602

Dinh (Migration) [2021] AATA 602 (1 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hoang Son Dinh

CASE NUMBER:  1908613

HOME AFFAIRS REFERENCE(S):          BCC2018/1632606

MEMBER:Michael Cooke

DATE:1 March 2021

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

·cl 820.221 of Schedule 2 to the Regulations

Statement made on 01 March 2021 at 2:43pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – genuine and continuing relationship – validly married – financial, household and social aspects of relationship – nature of commitment – sponsor’s support during applicant’s imprisonment and immigration detention – decision under review remitted

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

CASE
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 12 April 2018 on the basis of his relationship with his 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 found that the applicant did not meet s.5F of Act.

4. The applicant appeared before the Tribunal on 18 February 2021 (electronically) to give evidence and present arguments. The Tribunal also received oral evidence from: Christine Chan and Thy Chan (her mother). The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. Following the hearing the applicant provided the Tribunal with additional information pursuant to reg.1.15A(3).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the definition of spouse in s.5F of the Act.

   SPOUSE/DE FACTO (cl 820.211(2)(a), cl 820.221)

   Whether the parties are in a spouse or de facto relationship

8. 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 citizen.

9. ‘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?

10. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. 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?

    Findings and reasons about each matter in reg 1.15A(3)(a), (b), (c) and (d), and any other circumstances of the relationship under reg 1.15A(2):

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

11. The Tribunal has been given the benefit of additional information and finds that the financial aspects of the relationship are spousal in nature. This includes joint ownership of assets; joint liabilities; extent of pooling of financial resources and any legal obligations owed to the other party including also the sharing of day-to-day household expenses.

    ·Nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

12. The Tribunal observes that the parties do not have any children but the parties’ living arrangements have been spousal in nature including any sharing of housework.

    ·Social aspects of the relationship – including whether 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.

13. The Tribunal has been given the benefit of additional information and finds that the social aspects of the relationship are spousal in nature. The parties have submitted photographic evidence that they represent themselves to other people as being married to each other and are so accepted when undertaking joint social activities. The applicant’s mother in law and wife have given oral evidence to the Tribunal about the nature of the relationship that is probative of its genuineness.

    ·Nature of persons' commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

14. The applicant and his sponsoring spouse both insist on their inviolable commitment to each other. They have been together since 2016. Their commitment has been tested by the applicant’s term of imprisonment including the degree of companionship and emotional support they draw from each other. Nevertheless, the Tribunal finds that they see their relationship as long-term and exhibit the necessary mutual commitment to a shared life.

    ·Any other circumstances of the relationship.

15. The applicant has indicated that as a result of his impecuniosity and the financial impact of his mother’s expensive cancer treatment in Vietnam he became involved in criminal activities to secure funding for her cure. He informs that he regrets that he ever became involved in this criminal caper because it led inexorably to his subsequent criminal charge and imprisonment for nearly two years. He now finds himself in detention. This issue then had deleterious effect on the mental health of his wife. Fortuitously, the parties remain united despite these events.

16. The Tribunal has considered “the full circumstances of the relationship” and makes the findings on these matters against s 5F(2)(b)-(d): the parties have a mutual commitment to a shared life to the exclusion of others; a genuine and continuing relationship and they live together or not separately and apart on a permanent basis.

17. 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 at the time of this decision.

18. Therefore, the applicant meets cl 820.211(2)(a) and cl.820.221(1)(a).

19. Before concluding the time of decision criterion in cl 820.221 is met, the Tribunal has made the following findings on the additional time of application sub-criteria. The applicant was sponsored by his sponsoring partner at time of application and continues to be sponsored by her meeting cl 820.211(2)(c)). He was also a substantive visa holder and meets the Schedule 3 requirements in cl 820.211(2)(d) and the additional time of decision sub-criteria for sponsorship (cl 820.221(4)).

20. 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

21. 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

    Michael Cooke
    Senior 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).