Do (Migration)

[2023] AATA 3865

Do (Migration) [2023] AATA 3865 (18 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Yen Linh Do

REPRESENTATIVE:  Dr Tung-Bao Ngo (MARN: 0006620)

CASE NUMBER:  1932202

HOME AFFAIRS REFERENCE(S):          BCC2018/3043157

MEMBER:Justin Meyer

DATE:18 July 2023

PLACE OF DECISION:  Melbourne

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 18 July 2023 at 4:07pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – financial aspects – nature of the household – social aspects – nature of the commitment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 360
Migration Regulations 1994 (Cth), r 1.15A; 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 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 13 August 2018 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 application was refused on 6 November 2019 on the basis that the delegate was not satisfied the applicant met cl 820.211 of Schedule 2 to the Regulations. Relevantly, the delegate was not satisfied that there was sufficient evidence to demonstrate that the applicant was the ‘spouse’ of her sponsor at the time of the application.

4. The applicant seeks review of the delegate’s decision. She was represented in relation to the review.

5. The applicant provided further information to the Tribunal in support of her claims in April 2022. This information, which was accompanied by a submission addressing each of the relevant criteria, was comprehensive, detailed and cogent. In December 2022 the Tribunal undertook outreach to obtain updated information and submissions from the applicant, which was provided in February 2023. As a result of this outreach the applicant provided updated evidence, including statutory declarations from parties, updated bank statements, statements from others, photographs and insurance details.

6. The evidence and submissions provided by the applicant through her representative, strongly supported her claims. The submissions provided were clear, directed to the issues that required determination and were supported by, or referred to, specific evidence provided or already provided.

7. Accordingly, in reaching my decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

8. For the following reasons, I have concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether visa applicant was the spouse of her sponsor at the time of the application and whether she continues to be so at the time of this decision.

10. The visa applicant is a 47-year-old national of Vietnam. She was previously married and she divorced. The review applicant is an Australian citizen. It is claimed that the visa applicant and the review applicant met in first met each other at Da Nang airport on 9 November 2017 when the sponsor travelled to Vietnam. On 20 December 2017, the sponsor returned to Australia. On 27 March 2018, she arrived in Australia and on 11 June 2018, she returned to Vietnam. On 26 June 2018, she arrived back in Australia. The parties married in Australia on 11 August 2018.

    Are the parties validly married?

11. A marriage certificate issued in Australia on 11 August 2018 was provided to evidence the marriage.  I find the parties to be validly married.

    Summary of relationship

12. The relationship can be summarised as follows:

    ·The sponsor, Hao Gia Nguy, was born in Vietnam in September 1970. He was granted Australian citizenship on 7 January 1991. The sponsor was previously in a de facto relationship with Thi Anh Hong Nguyen from January 2001 to January 2005. There was one child from this relationship.

    ·The applicant, Thi Yen Do, was born in February 1976 in Vietnam and is a citizen of that country. She was previously married to Anh Cuonh Pham from January 1990 until their divorce in January 2001. There were two children from that relationship. She also had a relationship with Daniel Lee Yang Siew, a Singaporean, between 2008 and 2010. There was one child of that relationship.

    ·The parties claim they first met online. They met in person for the first time about a month later at Da Nang Airport on 9 November 2017 when the sponsor travelled to Vietnam. The applicant arrived in Australia on a Tourist (subclass 600) visa in June 2018. They married in Australia on 11 August 2018.

    Evidence

    Financial aspects

13. The following evidence was provided to support the financial aspects of the relationship:

    Evidence before the Department

    ·The parties provide statements for a joint account that was opened on 21 May 2018. The bank statements from May to June 2018 show limited transactions, and bank statements from July to December 2018 showed salary deposits, transfers from the sponsor, cash deposits, transfers to the applicant and evidence of daily expenses being paid from this account.

    Evidence before the Tribunal

    ·The applicant’s representative provided submissions to the Tribunal addressing the statutory requirements. It was submitted that the parties have a joint bank account which they use for day-to-day household expenses and savings.

    ·Copies of statements for the parties’ joint bank account were provided dated between 2018 and 2022.

    ·Car insurance in joint names

14. Having regard to this evidence, I accept that the parties have shared their finances and household expenses. I am also satisfied that the applicant and sponsor jointly own assets and have certain joint liabilities, and this gives weight to a finding that there is a spousal relationship.

    Nature of the household

15. The following evidence was provided to support the nature of the household:

    Evidence before the Department

    ·Copies of correspondence sent to the parties at the same address including, bank statements, tax receipts, unsigned tax return, and the parties’ respective drivers’ licence dated between 2018 and 2019.

    ·A lease agreement in joint names dated 9 September 2019.

    Evidence before the Tribunal

    ·In the written submission it was stated that the parties have resided together at four different addresses since June 2018. In their current property they have sublet three bedrooms to other tenants. They share household responsibilities including cooking, cleaning, and laundry. Their gas, electricity and water accounts are in joint names.

    ·A copy of a residential tenancy agreement in the parties’ joint names.

    ·Utility bills (electricity, gas and water) in the joint names of the applicant and sponsor and other correspondence sent to them at the same address between 2019 and 2022 including from their car insurance company, the applicant’s superannuation company, Victoria Police, Maribyrnong City Council, DODO, Medicare, Medibank, Mimco, and the Australian Taxation Office.

16. Based on the above evidence, I am satisfied that the applicants have established a joint household and share domestic responsibilities. The living arrangements of the persons are reflective of a joint household and I give this weight.

    Social aspects of the relationship

17. The following evidence was provided to support the social aspects of the relationship:

    Evidence before the Department

    a.The parties submitted a selection of photographs of the sponsor and applicant with each other, and with friends and family. These were taken over a period of years, on various occasions, including at their own wedding and other social activities and travel.

    b.The applicant submitted a menu for their wedding and a receipt for applicant’s wedding ring.

    c.Statutory declarations were provided from two friends of the parties, Tuyet Phuong Candy Hau, and her husband, Thuong Hoang Pham, in which they stated they were invited to their wedding and considered the relationship was genuine.

    Evidence before the Tribunal

    d.The submission to the Tribunal stated that the parties are recognised as married couple and have attended many events as a married couple.

    e.Five statutory declarations dated between 2019 and 2021 were provided by family members and friends to support the genuine and ongoing nature of the relationship.

    f.The applicant’s tax return for the financial year ending June 2019 in which the sponsor was identified as her spouse.

    g.Selected photographs of the parties wedding in 2018, and large number of photographs taken between 2017 and 2022 in both Vietnam and Australia, depicting the applicant and sponsor which each and with family members and friends including engaging in social activities.

    h.Invoices for gifts purchased for the applicant and sponsor by the applicant’s sister dated between October 2019 and January 2020.

18. There is significant evidence of the applicants undertaking joint social activities. I also accept that there is evidence before the Tribunal that the relationship between the visa applicant and the review applicant is known to friends and family and is socially recognised.

    Nature of the persons’ commitment to each other

19. The following evidence was provided to support the nature of the parties’ commitment to each other:

    Evidence before the Department

    a.A marriage certificate issued in Australia on 11 August 2018 was provided to evidence the marriage. 

    b.Evidence of communication between the applicant and the sponsor from October to November 2017 and in December 2017 using chat message, indicating their contact commenced approximately one month before they met in person in 2017.

    Evidence before the Tribunal

    c.In submissions to the Tribunal, it was stated that the parties have been marred since August 2018, they have supported each other and have a mutual commitment to a shared life together.

    d.A copy of the applicant’s superannuation statement showing that she had nominated the sponsor a beneficiary, along with her children. 

    e.Copies of the viber chats between the parties between 23 September 2017 and 6 November 2017, and 14 January 2018 and 17 June 2018.

20. Based on the information before me, and there is no evidence to the contrary, I am satisfied that the relationship between the applicant and the sponsor is genuine and continuing. The Tribunal is satisfied, based on the information provided and the detailed submissions, that the applicant and sponsor have a mutual commitment to a shared life to the exclusion of others. Furthermore, there is no evidence to suggest that the applicant and the sponsor live separately and apart on a permanent basis.

    Conclusion

21. As already noted, the applicant, through her representative, has provided cogent relevant evidence in support of her claim that she is in a genuine spousal relationship with the sponsor and has been in such a relationship from the time that they committed to each other from late 2017 and then, from the time of their marriage, in August 2018. The statements and documentary evidence provided, including those from the applicant and the sponsor, were detailed. I found them to be plausible and persuasive.

22. On the basis of the above I am satisfied that the requirements of s 5F(2) are met at the time the visa application was made and the time of this decision.

23. 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

24. 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; and

    ·cl 820.221(1) of Schedule 2 to the Regulations.

    Justin Meyer
    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).