Dinh (Migration)

[2017] AATA 808

Dinh (Migration) [2017] AATA 808 (17 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Duy Phong Dinh

CASE NUMBER:  1612544

DIBP REFERENCE(S):  CLF2013/110183

MEMBER:Helena Claringbold

DATE:17 May 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl.801.221 of Schedule 2 to the Regulations.

STATEMENT MADE ON 17 MAY 2017 AT 3:09PM

CATCHWORDS

Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – Genuine and continuing partner relationship – Greater substantial evidence available to the Tribunal – Shared mortgage – Household arrangements – Family and social recognition of the relationship – Plans to commence a family

LEGISLATION

Migration Act 1958, s 5(F)

Migration Regulation 1994, Schedule 2, cl 801.221, r 1.15A

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 17 May 2013, Mr Duy Phong Ding, the applicant applied for a Partner (Residence) (Class BS) visa.  The application was made on the basis of his spousal relationship with Ms Thi Thanh Thao Do, the sponsor.

2. On 18 July 2016, a delegate of the Minister for Immigration refused to grant the visa on the basis that the applicant did not satisfy cl.801.221 because the delegate was not satisfied that the applicant continued to be in genuine spousal relationship with the sponsor.  This is a review of the delegate’s decision.

3. On 10 May 2017, the applicant appeared before the Tribunal to give evidence and present arguments. He provided the Tribunal with a copy of the delegate’s decision record. The Tribunal also received oral evidence from Ms Do. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration all the evidence in the Departmental case file CLF2013/110183, folios numbered 1-144, and the Tribunal’s case file 1612544, folios numbered 1-111 and the evidence given  at the Tribunal hearing.

   ISSUE

6. The issue in this matter is whether the applicant is the spouse of the sponsor as defined in s.5F of the Act.

   BACKGROUND ON THE EVIDENCE
   
   

7. The applicant was born in 1984 in Ho Chi Minh City, Vietnam.  His parents and brother live in Vietnam. On 21 November 2012, he was granted a Subclass 300 visa.  On 9 December 2012, he entered Australia.  On 11 June 2013, he was granted a Subclass 820 visa. He is employed as a baker. In April 2016, the Department invited the applicant to provide information to support that the parties were in a spousal relationship.  In May 2016, the Department received further information.  In July 2016, the Department called the applicant leaving a voicemail that the applicant return the call.  At the time of the delegate’s decision the applicant had not responded.

8. The sponsor was born in 1982 in Ho Chi Minh City, Vietnam. She is an Australian citizen. Her parents, two brothers and three sisters live in Vietnam. She has another brother who lives in Australia. In 2000, she married Mr Nguyen Hiep Tran and in 2006 they divorced.   

9. On 24 December 2010, the parties met in Ho Chi Minh City, Vietnam. On 1 January 2012, the parties became engaged in Vietnam. On 29 December 2012, the parties married in Fairfield, New South Wales. On the applicant’s arrival in Australia on 9 December 2012, the parties began living together.

   THE TRIBUNAL HEARING

10. The parties provided consistent evidence about their daily lives.  This included their employment details, hours of work and salaries.  They told the Tribunal about their family members and could explain about the sponsor’s mother’s health.  They agreed about duties in their household and about attending social events.  They were also in agreement about their future plans.  Other evidence provided at the hearing is recorded throughout this decision record.

    Are the parties validly married?

11. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The applicant provided evidence of his marriage to the sponsor. 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 parties are in a spousal relationship

12. Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who is an Australian permanent resident and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

13. ‘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 husband and wife 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 as to 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 visa applicant’s and sponsors household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.

14. On these aspects the Tribunal is satisfied that the facts of the case are as follows: the household income is derived from the sponsor’s and applicant’s salaries and from the rent of one of the rooms in the parties’ home. The parties’ joint bank account is managed by the applicant. Both parties deposit into this account and the applicant pays various bills from the account including utilities and some groceries.  Other expenses are shared between the parties. 

15. The parties share household duties however the sponsor does the cooking. Various documents have been provided individually addressed to the parties address.

16. Because of the parties’ work hours their social life is limited.  They visit the applicant’s brother-in-law and spent last Easter with him and his family.  Other family gatherings have been with the applicant’s grand-mother and his aunt’s family and cousins.  When the parties recently visited Vietnam, the sponsor ensured she had time with her mother.  The trip also allowed the applicant to be with his family.  Third party statements attest to the genuine nature of the parties’ relationship. Authors provide evidence of attending the parties’ marriage and of their plans to have children. Other authors see the parties on a regular basis. Photographic evidence depicts the parties on their wedding day.  They show the parties at different locations together and with others.  Images include the parties on their recent trip to Vietnam and them being with their parents and family members.

17. The parties have lived together in a spousal relationship for more than four years.  They support each other financially and emotionally. They are focussed on paying off the mortgage and plan their future to include having children.

    FINDINGS

18. The parties provided some inconsistent evidence at the Tribunal hearing.  The Tribunal determined it not to be fatal to the application.  In view of all the above, the Tribunal is satisfied that there is public recognition of the parties’ relationship. The Tribunal is satisfied by the evidence that the parties are in a genuine and continuing spousal relationship.

19. The Tribunal has considered the evidence individually and as a whole.  The Tribunal is satisfied that the applicant and the sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others; that their relationship is genuine and continuing and that they do not live separately and apart on a permanent basis.  The applicant therefore meets the requirements of s.5F of the Act.  Given these findings, the Tribunal is satisfied that the parties are in a spousal relationship.

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 801 visa.

    DECISION

21. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

    ·cl.801.221 of Schedule 2 to the Regulations.

    Helena Claringbold
    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).