Do (Migration)

[2023] AATA 199

Do (Migration) [2023] AATA 199 (8 January 2023)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Van Sang Do

CASE NUMBER:  1830151

HOME AFFAIRS REFERENCE(S):          BCC2016/3387257

MEMBER:T. Quinn

DATE:8 January 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:

·Clause 820.211(2) of Schedule 2 to the Regulations

Statement made on 08 January 2023 at 1:42pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – parties validly married – Certificate of Marriage provided – applicants have had two children together – applicants have now lived together and been married for over six years –parties jointly share liabilities in the form of their financial commitments – decision under review remitted 

LEGISLATION
Migration Act 1958, ss, 5F, 65
Migration Regulations 1994, r 1.15, Schedule 2, cl 820.211

statement of decision and reasons

application for review

1. On 12 October 2016, the applicant (‘the applicant’ or ‘Mr Do’) applied for a Partner visa[1] (‘the visa’) based on his marriage to his sponsor, Ms Huong Thi My Do ( ‘the sponsor’ or ‘Ms Do’).[2]

   [1]           Specifically, a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa.

   [2]Pursuant to section 65 of the Migration Act 1958 (‘the Act’). At the time of the applicant’s application, Class BS contained only one subclass: Subclass 801 (Partner) and Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of these visas are set out in Parts 801 and 820 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.

2. On 8 October 2018, a delegate of the Minister for Home Affairs (‘the delegate’) refused the applicant’s partner visa application, not being satisfied that at the time of application the applicant was the spouse of the sponsor as defined by section 5F of the Act (‘the delegate’s decision’).[3]

   [3]         See clauses 801.221 or 820.211 of the Migration Regulations 1994 (‘the Regulations’).

3. On 15 October 2018, the applicant applied for a review of the delegate’s decision with this Tribunal.[4]

   [4] Pursuant to sections 338(2) and 347 of the Act.

4. On 3 October 2022, the applicant, the sponsor and two witnesses (Ms Tran Thi Tuyet and Ms Tran Thi Yiet) appeared before the Tribunal to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. Upon  hearing the applicant and the sponsor’s evidence I determined to adjourn the hearing in order that further evidence, including a DNA test in relation to the applicant’s paternity of the children Tyson Do (‘Tyson’) and Jessica Do (‘Jessica’), could be provided.  That evidence has now been provided I am satisfied that Mr Do is the biological parent of his two children Tyson and Jessica and the spouse of the sponsor.  I do not consider it necessary for the applicant and sponsor to provide any further evidence in this case.  The appropriate course is to remit the application.

6. I have proceeded to a decision having regard to all the information before me.  In reaching my decision, I have regarded:

   a.the oral evidence and submissions of the applicant and the sponsor given at the hearing;

   b.all material filed by or on behalf of the applicant; and

   c.other relevant documents on the Tribunal and Department files.

   Not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the reasons set out below. The reasons incorporate reference only to that information found to be fundamental or materially significant to the determination of the issues in the case.

   STATUTORY AND LEGAL FRAMEWORK

7. The issue in this case is whether the applicants are in a spouse relationship as defined by section 5F of the Act.

8. Clause 820.211(2) of the Regulations requires that at the time the visa application was made 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 visa applicant claims that he is the spouse of the sponsor, Ms Huong Thi My Do (‘the sponsor’), who was granted a permanent resident partner visa on 23 August 2013 based on her marriage to her first husband. Based on the information before me I am satisfied that the sponsor is an Australian permanent resident.[5]

   [5]See folio 86 of the Department file which sets out a timeline of events including the sponsor’s successful partner visa grant and see also the sponsor’s evidence at hearing.

9. ‘Spouse’ is defined in section 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.[6] 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 review applicant’s household and their commitment to each other as set out in 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in clause 1.15A(3) of the Regulations are effectively questions which must be answered.[7] 

   [6] Section 5F(2)(aa)-(d).

   [7]         He v MIBP [2017] FCAFC 206.

10. The matters outlined in clause 1.15A(3) of the Regulations (and any other circumstances of the relationship under clause 1.15A(2)) must be considered and, to the extent relevant, applied to the applicant’s case. Accordingly, I have carefully considered these matters in relation to the material and evidence before me. I recognise, however, that the Tribunal is an independent statutory body. I must therefore reach my own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor of clause 1.15A is relevant and applicable, independently of any conclusions reached by the delegate.

11. Compliance with the prescribed criteria turns on whether or not the criteria have been met and not on the objective existence of that fact.[8]  In determining whether it is so satisfied, decision makers are not required to uncritically accept any or all of the claims  made by the applicants and I have not done so.  A decision maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion is not made out.[9]

    [8]         Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5 at 15.

    [9]Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 at [7].

12. If a decision maker does not believe a particular witness, no detailed reasons need be given as to why that particular witness was not believed.  The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepts or rejects individual pieces of evidence.[10]

    [10]Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67].

13. It is for the applicant, in this inquisitorial process, to put whatever evidence or argument they wish to a decision maker in order to enable that decision maker to reach the requisite state of satisfaction.[11]

    CONSIDERATION OF CLAIMS AND EVIDENCE

    [11]Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76].

    Valid marriage

14. If Mr and Ms Do (‘the applicants’) are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.  The applicants have filed a copy of their Marriage Certificate with the Department which indicates they were married on 15 June 2016.[12] On the evidence, the applicants were married to each other under a marriage that is valid for the purposes of the Act as required by section 5F(2)(a).

    [12]        See folio 39 of the Department file.

    Timeline

15. The sponsor first arrived in Australia in 2009 on a student visa to study hospitality.[13]  She married her first husband on 12 April 2010 and gave birth to her first child, Andy Nguyen on 1 June 2011.[14]  The sponsor was granted a temporary partner visa on 17 August 2011 and a permanent partner visa in 2013.[15]  She gave evidence at hearing that her relationship deteriorated with her first husband because he was not working, was gambling a lot and stayed at home and they fought a lot.  It appears that the sponsor’s first husband withdrew his sponsorship of her partner visa application prior to her being granted her permanent partner visa but she was not able to provide any more information to the Tribunal at hearing in relation to this.

    [13]See folio 86 of the Department file and evidence at hearing.

    [14]See folios 32 and 86 of the Department file and evidence at hearing.

    [15]See folio 86 of the Department file and evidence at hearing.

16. The applicant was a car signage designer in Vietnam who knew the sponsor’s mother.  After the sponsor separated from her first husband the applicants met in Vietnam when the applicant was working on the sponsor’s mother’s tour bus.[16]  Neither of the applicants could remember what year this was, and both gave evidence that their romantic relationship did not start at this time but that they exchanged numbers and kept in touch.

    [16]See folio 86 of the Department file and evidence at hearing.

17. The sponsor divorced her first husband on 2 August 2014.[17]

    [17]See folio 32 of the Department file.

18. The sponsor visited the applicant in Vietnam and gave birth to their first child, Tyson, on 18 October 2014.[18]  The applicant was not present for that birth.[19]  The applicants gave inconsistent evidence at hearing about who was present for the birth, the applicant stating it was the sponsor’s mother and friend Kim and the sponsor saying it was her friend Diem.

    [18]See folio 86 of the Department file, birth certificate filed 27 September 2022 and evidence at hearing.

    [19]See evidence at hearing.

19. The applicant arrived in Australia in March 2016 on a tourist visa.[20] 

    [20]See folios 9 and 86 of the Department file and evidence at hearing.

20. The sponsor gave birth to their second child, Jessica, on 13 August 2016.[21]  The applicants gave evidence that the applicant was present at the birth of Jessica, but they were unable to provide corroborating photos of this.

    [21]See folio 86 of the Department file, birth certificate filed 27 September 2022 and evidence at hearing.

21. The sponsor has provided copies of her passport stamps which corroborate that she was in Vietnam in or around the time of conception for both children.[22]

    [22]See submissions of 4 October 2022.

22. The applicants married on 15 September 2016[23] and filed the application which is the subject of this review on 12 October 2016. 

    [23]See folios 29 and 86 of the Department file and evidence at hearing.

23. The sponsor purchased the house in St Albans in or around 2019, where she lives with the applicant and her three children (‘the St Albans house’).[24]

    [24]See submissions of 13 September 2022 and evidence at hearing.

    Financial aspects of the Relationship

24. 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; and any sharing of day-to-day household expenses must be considered when assessing the financial aspects of the relationship.

25. The applicant has filed several joint bank account statements and business account statements.  The household bills are in the name of the sponsor only.  However, the applicants gave consistent evidence at hearing that they saved together to pay a deposit on the St Albans house which was purchased in the sponsor’s name only as the applicant does not have his visa.  I accept this evidence.  The applicants gave consistent evidence that the St Albans house cost just over AUD500,000, they paid a 20% deposit, and the sponsor repays the mortgage of approximately AUD1,700 per month.  The sponsor gave evidence that she also borrowed funds from her mother in Vietnam to contribute to the 20% deposit on the St Albans house.  However, the applicant did not mention this arrangement until very late in my questioning about alternative sources of funds at which stage he said that his mother-in-law had obtained a loan from a Vietnamese bank to assist with the deposit for the St Albans house.  The way in which the applicant gave evidence in this regard raised concerns for me about whether he was being forthright.  The applicants gave consistent evidence that the applicant sends money to his mother-in-law on a monthly basis to repay funds they borrowed from her to purchase the St Albans house.

26. The applicants gave inconsistent evidence about large transfers shown in the joint bank account to and from Diem Tran.  The sponsor gave evidence that this was a friend who had borrowed money from them and was repaying those funds.  The applicant gave evidence that Diem Tran runs a credit scheme among the Vietnamese community, and he had borrowed money to buy a van for his work and is repaying that loan.  I am concerned by this inconsistent evidence.

27. The sponsor’s evidence was difficult to follow in relation to the financial arrangements between her and the applicant.  She gave oral and documentary evidence in relation to a family trust that she has set up for tax purposes and said that the applicant’s salary is put into that account and then she distributes it to him while holding some back for fuel costs.  She lacked clarity around the applicant’s contribution to the cost of the mortgage and how finances were managed.  However, the applicant gave clear evidence that the sponsor pays the mortgage from her income and arranges the payments of all household bills.  Ultimately, I consider the evidence supports a conclusion that they are effectively pooling their funds and then paying outgoings in various ways from those pooled funds.

28. The applicants gave consistent evidence that the sponsor earns between AUD600-700 per week after tax and that the sponsor was earning AUD2,000 as a delivery driver and is now earning AUD2,900 having recently commenced cleaning the vehicles for his employer two nights a week on top of his usual role.

29. The applicants gave consistent evidence that the St Albans house is three bedroom but too small for their children as they grow, and they want to buy a larger house but need the applicant’s visa in order to do that.  They gave consistent evidence that they plan to retain the St Albans house and rent it out as an investment.

30. The applicants gave consistent evidence about the sponsor’s frustration with the applicant for regularly being fined for various driving or parking related offences during his work.  This evidence was given in an authentic way that suggested their evidence was not planned or contrived and presented as the sort of tension typical in long term partnerships.

31. The evidence indicates there has been considerable pooling of financial resources, joint purchase of real estate in the constructive sense and an intention to jointly own a house more formally once the applicant has his visa,  joint responsibility for household costs and a sharing of day-to-day household expenses. 

32. In the circumstances, I place weight in the applicants’ favour in relation to the financial aspects of the relationship.

    Nature of the Household

33. Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are matters to be considered when assessing the nature of the household.

34. The applicants gave consistent evidence that the sponsor’s oldest son, Andy, spends most of his time with the applicants and their two children as a family of five.  They gave consistent evidence that Andy sees his biological father sometimes on weekends and sometimes overnight every two or three months.  They gave relatively consistent evidence about the children’s grades at school and the bedroom configuration which was somewhat ambiguous because the children often sleep with their mother.  The applicants gave consistent evidence that the applicant leaves home six days a week at 6 or 7am before the children wake up, finishes early in the afternoon and picks the children up from school and returns for the cleaning aspect of his job in the evening twice a week.  They gave consistent evidence that the sponsor works five days a week and starts after she drops the children to school.  The gave consistent evidence that the sponsor has Thursdays and Saturdays off, and that the applicant looks after all three children on Sundays and often brings the children in to see their mother at work on a Sunday.

35. The applicants gave consistent evidence about the division of household tasks like washing, cooking, dishes and grocery shopping.  Their evidence about who does the cooking differed to some extent, but I place minimal weight on this.  They gave consistent evidence that they do not plan to have any more children.  It was clear to me they are living together as a family at the St Albans house.

36. As the applicant works on Saturdays and the sponsor works on Sundays the applicants have limited time together as a family, but they share evening mealtimes and Sunday afternoons.      

37. A DNA test was requested by the Tribunal and the results were received on 5 January 2023 confirming the applicant is Tyson’s and Jessica’s biological father.

38. The applicants have had two children together and filed many photos that suggest they are both involved as parents in all three of the sponsor’s children’s lives.[25]  The applicant and the sponsor are listed as parents on both Tyson and Jessica’s birth certificates.[26]  The sponsor is the only informant on Tyson’s birth certificate as the applicant was still living in Vietnam at that time.  The applicants are both listed as informants on Jessica’s birth certificate.

    [25]See Tribunal file including birth certificates filed 27 September 2022.

    [26]See birth certificates filed 27 September 2022.

39. In the circumstances, I place considerable weight in favour of the applicants in relation to the household aspects of the relationship.

    Social Aspects of the Relationship

40. Whether the applicants represent themselves to other people as being married to each other, the opinion of the applicants’ friends and acquaintances about the nature of the relationship and any basis on which the applicants plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.

41. The applicants have filed many photos of the applicant and the sponsor undertaking shared activities, at home together, out with others – often over a meal, at celebratory events together, in Vietnam, sightseeing together and many photos with their children.  The sponsor produced photos of her family on her phone during the hearing that were not part of photos that had already been filed. 

42. The applicants have filed two statutory declarations from friends in relation to their relationship, but these are relatively generic and now very dated (signed in 2016) and I place minimal weight on them.  The applicants had two witnesses ready and willing to give evidence in support of their relationship on 3 October 2022 at hearing.

1. The sponsor was wearing a wedding ring in photos and at hearing which suggests she presents to the world as married.

2. As stated above it is clear that the applicants are hard working individuals with a young family and have minimal time for socialising outside of their work and parenting responsibilities.  The photos and evidence they have supplied are consistent with this phase of life.

3. When I expressed concern about the fact that the applicants did not have a wedding celebration, the applicants gave forthright evidence that they got married in order to make a partner visa application so the applicant could remain onshore as Tyson and Jessica’s father.  They also gave consistent evidence that with a small family they could not afford to travel or have a large wedding celebration.  I found these explanations persuasive.  I consider it likely that there are aspects of the applicants’ marriage and relationship that have been motivated by securing a visa for the applicant.  I note in this regard that the Full Federal Court has held that people enter into marriages with a variety of purposes and motives.  It is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to material benefit or advancement, as for example with the hope of becoming eligible to reside in a particular country.[27]

   [27]         Re MILGEA and Dhillon [1990] FCA 144.

4. I place weight in the applicants’ favour in relation to the social aspects of the relationship.

   Nature of the applicant and the sponsor’s commitment to each other

5. The duration of the relationship, the length of time during which the parties have lived together, the degree of companionship and emotional support that the parties draw from each other and whether the parties see the relationship as a long term one are all aspects to be considered in determining the nature of the parties’ commitment to each other.

6. The applicants have now lived together and been married for over six years and their evidence and photos suggest the degree of companionship and support one would expect in a spousal relationship.

7. The applicants both gave evidence about buying a house together and raising their family together.  They gave consistent evidence about their day-to-day life and shared joys and frustrations that are common when parenting young children and working long hours.  They gave persuasive evidence about the running of their household and division of household and parenting tasks.

8. I place weight in the applicants’ favour in relation to their commitment to each other.

   Other Matters

9. Much of the evidence before me, including the birth certificates of Tyson and Jessica, was not before the Department.  A natural justice letter was sent to the applicants by the Department on 1 August 2018 which was not adequately responded to.  The applicants gave evidence that their previous representative did not do a good job with their original application, they were unaware that they needed to file copies of birth certificates.  They also gave consistent evidence that they had not retained phone records from the earlier times of their relationship because they were not aware that they needed that in support of their application.  The sponsor also gave evidence that at that time she did not think she would sponsor the applicant and that it was only later in their relationship that she began considering doing that.  I found these explanations plausible.

   Conclusions

10. I have carefully considered all of the evidence before me. I consider the evidence supports a finding that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of others and that their relationship is genuine and continuing and that they live together, not separately and apart, on a permanent basis. I am satisfied that the applicant is in a spouse relationship with the sponsor and the applicant therefore satisfies clause 820.211(2).

    decision

11. The appropriate course is for this matter to be remitted for reconsideration by the Department.

12. 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: Clause 820.211(2) of Schedule 2 of the Regulations.

    T. Quinn
    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).