Dinh (Migration)

[2021] AATA 5650

Dinh (Migration) [2021] AATA 5650 (11 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Van Tuan Dinh

CASE NUMBER:  2000803

HOME AFFAIRS REFERENCE(S):          CLF2013/198143(*)

MEMBER:Michael Cooke

DATE:11 October 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 11 October 2021 at 2:46pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Circuit Court remittal – Schedule 3 criteria – genuine and continuing relationship – relationship ceased – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 360
Migration Regulations 1994 (Cth), Schedule 2, r 1.15A; cls 820.211, 820.221

CASES
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 Immigration and Border Protection 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 19 August 2013 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 applicant did not meet the Schedule 3 criteria and did not have satisfactory ‘compelling reasons’ to ground waiver of the requirement.

4. The matter is before the Tribunal because of a Court order remitting the matter to the Tribunal.

5. The Tribunal allowed the applicant’s representative further time to forward a submission to update it on the contemporary situation with the case.

6. The representative (a registered migration agent) responded to the invitation as follows:

   I have been instructed by my client to request the Tribunal to make an affirmation of the refusal decision on the papers on the basis that the relationship between the applicant and his sponsor has ceased to exist.

   We had had the intention to provide the Tribunal with a written statement signed by the applicant himself during this week as indicated in my previous correspondence. Unfortunately, due to the Covid situation and lockdown in Sydney, we were unable to meet in person to sign the statement. However, I have discussed with my client at length and my client has made a decision not to make any further submissions at this stage.

7. The applicant was scheduled to appear before the Tribunal on 15 July 2021 to give evidence and present arguments. The hearing has been cancelled at the applicant’s request and the applicant has requested a decision be made ‘on the papers’ pursuant to s.360(2)(b) of the Act.

8. The applicant was represented in relation to the review by his registered migration agent.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Consideration of claims and evidence

10. The issue in the present case is whether the parties are still in a genuine and continuing relationship as required by the definition of spouse in s.5F of the Act.

    Whether the parties are in a spouse or de facto relationship

11. 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 claimed to be the spouse of the sponsor who is an Australian citizen.

12. ‘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.

13. The applicant has informed the Tribunal that “the relationship between the applicant and his sponsor has ceased to exist” and has instructed the Tribunal to finalize this case without a hearing and without forwarding a requested submission to update the Tribunal on this long-term case.

    Are the parties validly married?

14. 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 at time of application under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a). The parties have informed the Tribunal in response to the hearing invitation that their relationship ‘has ceased to exist’. The Tribunal is unaware if they have formally divorced.

    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.

15. The Tribunal finds little information from the three prior Tribunal (separately constituted) decisions before it. Discussion predominately concerned the applicant’s failure to meet the Schedule 3 criteria.

16. Importantly, the applicant has chosen (despite invitation) not to update the Tribunal on the reg 1.15A(3) considerations. Furthermore, he has notified the Tribunal that the parties are no longer in a spouse relationship.

17. Regarding financial aspects of the relationship, the available evidence indicates that the applicant, for a significant time, had no permission to work so he was essentially subsidised by the applicant. This indicates a pooling of financial resources would have been necessary. The parties also claimed to have co-habited since 2010 as de facto and later married persons. So, the Tribunal accepts there was, inevitably, sharing of day-to-day household expenses and gives this some positive weight. There is little evidence before the Tribunal regarding prior joint ownership of assets or joint liabilities or any legal obligations owed to the other party at time of application. Saying that, the Tribunal accepts that during the relationship there would have been rent and utilities payments during the time they were together and similar joint financial liabilities and gives this some positive weight.

18. The Tribunal finds that the applicant has, by his own admission, indicated that any spousal financial aspects of the relationship which may have existed no longer maintain.

19. The Tribunal finds that in view of the cessation of the relationship it gives this circumstance no weight as evidence of a spousal relationship.

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

20. The parties have no children of their relationship. The Tribunal accepts from the quantum of time the parties spent together that they previously had spousal living arrangements and sharing of housework and gives this some weight.

21. However, recently, the Tribunal finds that the applicant has, by his own admission, indicated that any spousal household which may have existed - no longer maintains. The Tribunal gives this circumstance no weight as evidence of a spousal relationship.

    ·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.

22. The parties claimed to previous (separately constituted) Tribunal Presiding Members that they were a couple since 2010. The Tribunal accepts, therefore, that when the relationship existed, the parties represented themselves to other people as being married to each other. The Tribunal accepts that the opinion of friends and acquaintances about the nature of the relationship was that it was spousal in nature. The Tribunal acknowledges from the quantum of time the parties spent together that they planned and undertook joint social activities.

23. However, the Tribunal finds that the applicant has, by his own admission, indicated that any social aspects of the relationship which may have been spousal no longer maintain as the relationship has ceased.

24. Therefore, the Tribunal finds that it gives this circumstance no weight as evidence of a spousal relationship.

    ·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.

25. The Tribunal has already acknowledged the lengthy duration of the parties’ former relationship and the length of time they have lived together. The Tribunal acknowledges further that, for some time, they drew companionship and emotional support from each other - especially regarding the sponsor. However, the revelation by the applicant that the relationship has ceased indicates that they do not see the relationship as long-term.

26. The Tribunal finds that the evidence of this circumstance does not support a spouse relationship.

    ·Any other circumstances of the relationship.

27. None.

28. Based on the above information provided by the applicant the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time this decision is made.

29. The Tribunal has considered whether the alternative criteria might apply to the applicant at time of decision.

30. These are:

    ·Death of the Sponsor (cl.820.221(2))

    ·Family violence (cl.820.221(3)(b)(i))

    ·Child Support obligations (cl.820.221(3)(b)(ii))

31. As there was no evidence submitted in relation to these issues and nothing arises on the facts, the Tribunal finds that the applicant does not meet any of these alternative criteria.

32. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    decision

33. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    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).