DO (Migration)

[2018] AATA 1047

DO (Migration) [2018] AATA 1047 (16 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs NGOC BICH DO
Miss HOANG PHUOC NGOC NGUYEN

CASE NUMBER:  1619999

DIBP REFERENCE(S):  CLF2013/141002

MEMBER:Russell Matheson

DATE:16 March 2018

PLACE OF DECISION:  Sydney

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

·cl.801.221(2)(c) of Schedule 2 to the Regulations; and

The second named visa applicant meets    the following criteria:

·cl.801.311 to the Regulations.

Statement made on 16 March 2018 at 1:08pm

CATCHWORDS

Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) visa – Whether the applicant is in a genuine spousal relationship with the sponsor – Lack of joint finances – Joint household – Emotional companionship – Relationship represented to others

LEGISLATION

Migration Act 1958, ss 5F, 65
Migration Regulations 1994, r 1.15A, Schedule 2, cls 801.221(2)(c), 801.311, 801.321

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 on 24 November 2016 to refuse to grant the applicants Partner (Residence) (Class BS) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant (the applicant) is a 40 year old national of Vietnam. She applied for the visa on 24 June 2013 on the basis of her relationship with her sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (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. Relevantly to this matter the primary criteria include cl.801.221.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221 because the delegate was not satisfied the applicant was the spouse of the sponsor. The applicant seeks review of the delegate’s decision.

4. The applicants appeared before the Tribunal on 6 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and the secondary applicant Hoang Phuc Ngoc Nguyen.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

7. The Tribunal has before it the Department’s file relating to the applicant; its own file; and a copy of the Department’s decision provided by the applicant (review applicant) to the Tribunal.

8. The evidence the parties provided at the Tribunal hearing is recorded throughout this decision record.

   Whether the parties are in a spouse or de facto relationship

9. 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 Australian citizen 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.

10. ‘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 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.

    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 with her application a copy of the marriage certificate registered in New South Wales under the Births, Deaths and Marriages registration Act 1995, indicating that the parties were married on 20 March 2013 at Cabramatta. There is no evidence before the Tribunal to indicate that the marriage is not valid. 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 spousal relationship met?

12. In forming an opinion whether they are in a marital relationship and in considering whether they have a mutual commitment to a shared life as husband and wife to the exclusion of all others, whether their relationship is genuine and continuing, and whether they live together and not separately and apart on a permanent basis as defined in s.5F(2)(b)-(d), the Tribunal has regard to all the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the applicant’s and sponsors household and their commitment to each other as set out in r.1.15A(3).

13. After careful consideration of all of the evidence before it, the Tribunal has reached the conclusion that it is satisfied the applicant is the spouse of the sponsor within the meaning of s.5F of the Act. Below the Tribunal sets out its consideration of the evidence under the relevant aspects of matters it must take into consideration under r.1.15A(3), and the reasons for its decision.

14. The Tribunal had the benefit of oral evidence from the applicant, the sponsor and a witness at the hearing and found their evidence to be detailed and consistent and overall credible witnesses. The Tribunal gave all the evidence provided by the parties at the Tribunal hearing and evidence provided by the applicant to the Department in the primary application and Tribunal file due regard. The applicant provided a significant amount of additional documentary and photographic evidence to the Tribunal. 

15. The Tribunal acknowledges the delegate’s concerns set out in the primary decision record. The Tribunal discussed these with the applicant and the sponsor in the course of the hearing and the Tribunal is satisfied that the explanations offered are plausible and overall credible.

    Financial Aspects

16. The Tribunal has considered the financial aspects of the relationship including any joint ownership of real estate or major assets, any joint liabilities, the extent of any pooling or sharing of financial resources, especially in relation to major financial commitments, whether any person in the relationship owes any legal obligation in respect of the other, and the basis of any sharing of daily household expenses.

17. The parties stated that they have a joint account together with debit cards linked to the account. The applicant said that she rarely uses her debit card because she is not confident of using it and needs the assistance of the sponsor or her daughter when using the card. The applicant said that she has no income and makes no contribution to the joint account because her Centrelink payments had ceased. The applicant said that the couple previously operated a joint account that was opened to deposit her Centrelink payments and that it was closed because the bank kept taking a monthly four dollar fee out of the account and in the end there was no money left in the account because her Centrelink payments ceased. The applicant said that the parties had opened a new joint account a few months ago. The applicant presented her Westpac debit card linked to the joint account issued for the period August 2017 to November 2021. The applicant further stated that the sponsor transfers money into the joint account and then takes the money out so they do not have to pay the monthly account fee of four dollars. The sponsor stated that they had opened the joint account because it was law in Australia and the account would be used for the sponsor’s Newstart allowance.

18. The parties stated that the sponsor has his own personal Westpac account and that his Centrelink and carer payments are deposited into his account. The sponsor said that he withdraws cash from his personal account to pay the rent which is currently $950 a fortnight. Further stating that he gives cash to the applicant for the day to day living expenses such as purchasing food and groceries. The parties stated that applicant is training to become a nail beautician and that she has no set hours and is paid $30 dollars a day when training and she uses this money for her personal expenses. The Tribunal accepts that there is a degree of difficulty to establish and maintain a joint account and share the daily expenses when there is only one income earner in the household.

19. The parties said that they have no joint liabilities or major assets together. There is little evidence before the Tribunal to indicate that the parties pool or share their financial resources or there is any sharing of the daily living expenses or that any person in the relationship owes any legal obligation in respect of the other. The Tribunal places no weight on this aspect of the relationship.

    Nature of the household

20. The Tribunal has considered the nature of the household including any joint responsibility for the care and support of children if any, living arrangements of the parties and the sharing of the responsibility for housework.

21. The couple gave detailed and consistent evidence about their living arrangements and the Tribunal is satisfied that they live together with the applicant’s daughter and the sponsor’s two children. The applicant and sponsor share the responsibility of caring for and supporting the sponsor’s [son]. The applicant and the sponsor spoke about sharing the household duties and responsibilities and individual tasks in detail. They provided consistent evidence of their living arrangements and details about their daily lives, income and family activities. The sponsor stated that he has cared for the applicant’s daughter since she arrived with her mother (the sponsor) by providing financial support to meet her basic needs for food, clothing, shelter and education. The applicant’s daughter said that she has been reliant upon the sponsor for financial support and her basic needs.

22. The parties provided documentary evidence such as a tenancy agreement, rental receipts and utility bills in joint names for their residential address.

23. Tribunal accepts the parties live together and that they have established a joint household. The Tribunal is satisfied that they share the household duties and responsibilities.

    Social aspects

24. The Tribunal considered the social aspects of the relationship, including whether the 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 parties plan and undertake social activities.

25. The Tribunal accepts that the relationship is socially recognised by family and friends. There are statements from third parties, including close family members, who express their view that the relationship is a genuine one. The couple presented additional photographic evidence of their recent travel together in Vietnam and photographic evidence of attending various family and social activities together. The parties’ stated that they have a close relationship with family members both in Australia and Vietnam who supported their relationship. The parties stated that they socialise more often in Vietnam and are restricted at times in Australia when caring for the sponsor’s [son]. The parties stated that they make arrangements for family members to take care of the sponsor’s son when they travel overseas.

26. The Tribunal is satisfied that in the opinion of friends and acquaintances they are in a genuine spousal relationship. The Tribunal is satisfied the applicant and the sponsor plan and undertake joint social activities. The Tribunal is satisfied that there is family support for the relationship.

    Commitment

27. The Tribunal has considered the nature of the parties’ commitment to each other, including the duration of the relationship, the length and time the parties have lived together, the degree of companionship and emotional support they provide each other, and whether the parties view the relationship as a long-term one.

28. The Tribunal acknowledges that the couple had been married for a period exceeding four years. The Tribunal places weight on the couple’s evidence that they provide care and support the sponsor’s [son] indicates a mutual commitment to the relationship. The parties said that they wanted to ensure the applicant’s daughter was able to go to university to further her education. The parties said that they are never apart and that they do everything and go everywhere together. The couple had also outlined their plans for the future.

29. The Tribunal is satisfied they view the relationship as a long term one and provide each other with companionship and emotional support.

    Findings

30. Having considered all aspects of the relationship, the Tribunal is satisfied that the applicant and the sponsor have a mutual commitment to shared life to the exclusion of others. The Tribunal is satisfied their relationship is genuine and continuing. The Tribunal is satisfied they live together. Given these findings the Tribunal is satisfied that at the time of this decision the parties are in a spousal relationship.

31. Given these findings the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of this decision. Therefore the applicant meets cl.801.221(2)(c).

32. The secondary applicant is a dependent child living at home with the applicant. She is a full time student who is wholly dependent upon the applicant for financial support and their basic needs for food, clothing and shelter.

33. The secondary applicant was wholly reliant upon the applicant for a substantial period immediately before the time of application.

34. The secondary applicant is wholly reliant on the applicant, which is greater than any reliance on any other person or source of support. Therefore the secondary applicant meets cl.801.311.

35. The Tribunal did not consider making a decision as to whether to the secondary applicant meets cl.801.321.

    Conclusion

36. 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

37. 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(2)(c) of Schedule 2 to the Regulations; and

    The second named visa applicant meets the following criteria:

    ·cl.801.311 to the Regulations.

    Russell Matheson
    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).