Dinh (Migration) - [2024] AATA 1162

Dinh (Migration) [2024] AATA 1162 (9 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Tieu Phuong Dinh
REPRESENTATIVE:  Dr Le Ha Uyen Nguyen (MARN: 1384072)
CASE NUMBER:  1918494
HOME AFFAIRS REFERENCE(S):          BCC2018/3976210
MEMBER:Stephen Conwell
DATE:9 May 2024
PLACE OF DECISION:  Perth
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(1) of Schedule 2 to the Regulations.

Statement made on 09 May 2024 at 9:49am
CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – validly married – financial, household and social aspects of relationship and nature of commitment – age difference – limited finances because of applicant’s pregnancy and sponsor’s work injury – simple life with limited circle of family and friends – brief but credible evidence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cl 820.211(2)(a), 820.221(1)
CASE
Li v Minister for Immigration [2007] FMCA 454

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 (Cth) (the Act).
The applicant applied for the visa on 28 June 2018 on the basis of her relationship with her sponsor (the sponsor, Mr Chanh Phuong QUACH, previously Kevin Chen, previously Cheng-Fan KUO).
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.
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.211 because the delegate was not satisfied that the applicant was the spouse of the sponsor at the time of application.
The applicant was represented in relation to the review by her registered migration agent (representative). The applicant provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.
As the applicant and sponsor (the parties) reside in New South Wales, they participated in the hearing by video-link on 7 May 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Thi Diem Chau NGUYEN, one of the applicant’s two aunts living in Australia. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The representative and the interpreter both attended the Tribunal hearing by video-link.
For the following reasons, the Tribunal has concluded that the decision…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dinh (Migration)

Details

AGLC: Dinh (Migration) [2024] AATA 1162
Case: [2024] AATA 1162
Decision Date: 9 May 2024

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Partner), made by an applicant claiming to be the spouse of an Australian citizen. The central dispute revolved around whether the parties were in a genuine and continuing spousal relationship, as required by the Migration Regulations 1994. The decision was made by Stephen Conwell.

The court was required to determine whether the parties met the criteria for a spouse relationship under section 5F of the Migration Act 1958 and regulation 1.15A of the Migration Regulations 1994. This involved assessing whether the parties were validly married, had a mutual commitment to a shared life as a married couple to the exclusion of others, genuinely and continuously lived together, and did not live separately and apart on a permanent basis. The assessment necessitated consideration of the financial and household aspects of the relationship, as well as the social aspects and the nature of their commitment to each other.

The court found that the parties were validly married, having provided a marriage certificate. However, the assessment of the other requirements for a spouse relationship, particularly the financial and household aspects, was incomplete. The court noted that limited finances, due to the applicant's pregnancy and the sponsor's work injury, and a simple life with a limited social circle were presented as evidence. Despite some brief but credible evidence, the Tribunal remitted the application for further consideration of the remaining criteria for the Subclass 820 visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant is expecting a child, due in July 2024. The parties refused a DNA test offered by the Tribunal due to financial constraints.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the parties are in a genuine and continuing spousal relationship.Whether the parties are in a spouse or de facto relationship 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. “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.Are the parties validly married? The parties married in New South Wales on 25 December 2017 and have submitted a marriage certificate in evidence. On the basis of this evidence, the Tribunal accepts the parties are 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? The Tribunal must consider all the circumstances of the relationship (including the matters specified in r.1.15A) in determining whether the parties are in a “married relationship” as defined by s.5F(2). Accordingly, this Tribunal has had regard to the parties’ financial relationship; the nature of their household; the social aspects of the relationship; and the nature of their commitment to each other. The Tribunal has had regard to the evidence provided relating to the financial aspects of the relationship, including joint ownership of assets, and joint liabilities; the extent of any pooling of financial resources, any legal obligations owed to the other party; any sharing of day-to-day household expenses. These include evidence of the parties’ joint National Australia Bank (NAB) account, with the most recent statement being from 11 September to 10 October 2023. At the hearing the parties independently told the Tribunal that the joint account is their only bank account; they do not have personal bank accounts. The parties each confirmed that they do not have joint assets or liabilities; last year the applicant purchased a car in her name. She explained that she had bought the car online and it was easier to put the car solely in her name.

Decision

Reasons for decision

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 of Schedule 2 to the Regulations·cl.820.221(1) of Schedule 2 to the Regulations.Stephen ConwellMemberATTACHMENT - Extract from Migration Regulations 19941.15A 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).

Ratio Decidendi

Legal Principle Established

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(1) of Schedule 2 to the Regulations.Stephen ConwellMemberATTACHMENT - Extract from Migration Regulations 19941.15A 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).