Doan (Migration)

[2022] AATA 4617

Doan (Migration) [2022] AATA 4617 (21 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Thanh Doan

REPRESENTATIVE:  Mr Huu Loc Nguyen (MARN: 1795573)

CASE NUMBER:  1834023

HOME AFFAIRS REFERENCE(S):          BCC2018/164778

MEMBER:Donna Petrovich

DATE:21 November 2022

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(2)(a) of Schedule 2 to the Regulations

Statement made on 21 November 2022 at 2:03pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – sharing of household expenditure – regular responsibility for the sponsor’s children – regular social activities – plans to start a business – emotional support and companionship – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.15

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 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 11 January 2018 on the basis of her relationship with her sponsor, Mr Justin Paul Guley. 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 (also known as the applicant) did not satisfy cl 820.211(2)(a) of the Regulations.  This is because the delegate was not satisfied that there was sufficient evidence that the relationship between the applicant and the sponsor was genuine and continuing.

   Background

4. The applicant is a thirty (30) year old Vietnamese woman.  She was in Australia studying a Certificate iii of International Cooking at Stotts College, when she was introduced to the sponsor through her sister.  The applicant’s sister knew the sponsor as he was a client of her salon.  She played matchmaker as the applicant had recently broken up with her boyfriend and was feeling sad and depressed.  The sponsor had been divorced for one (1) year and confided in the Therapist that he was feeling lonely.

5. They met at a Vietnamese restaurant in North Geelong, exchanged telephone numbers and started seeing each other one (1) month after their initial meeting. After three (3) months they confirmed that they were in a relationship.  On 25 May 2017 they started living together part-time at the applicant’s Footscray home as the sponsor was studying in Melbourne to qualify as a medical orderly.

6. On 10 December 2017 the couple held a civil wedding ceremony in Deer Park.  Aunties, Uncles and their families were in attendance. As the applicant’s parents live in Florida, America they were unable to attend.  On 2 February 2019 the couple were married in a traditional Vietnamese ceremony. 

7. The sponsor was previously married and has two (2) teenage children.  His children stay with the applicant and sponsor each weekend.

8. The couple plan to start a family but have struggled to conceive and are considering IVF.        

9. The applicant appeared before the Tribunal on 17 November 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Le Hoai Nhan Nguyen, Mr Justin Paul Guley (the sponsor), Paul William Guley (the sponsor’s father), Thi Hoa Doan and Thi Hong Hanh Nguyen.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

10. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

    Consideration of claims and evidence

12. The issue in the present case is whether the applicant and sponsor are in a genuine and continuing relationship.

    Whether the parties are in a spouse or de facto relationship

13. 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 claims to be the spouse of the sponsor who is an Australian citizen.

14. ‘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.

    Are the parties validly married?

15. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. Photographs of both the traditional Vietnamese wedding and the civil ceremony in Melbourne were provided to the Tribunal, as well as the Certificate of Marriage dated 10 December 2017. 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 spouse relationship met?

    Financial aspects of the relationship

16. The Tribunal received evidence of joint bank account statements showing transactions by both parties demonstrating day to day living expenses as would be expected.  The Tribunal also heard at the hearing that the couple had purchased together all of their household items for their current home in Armstrong Creek. They have lived together at this home for the last three (3) years.  The Tribunal was provided with a list of furniture and white goods purchased by them.  The Tribunal also heard that they had purchased a car together.  The Tribunal in considering the documentary material submitted prior to the hearing, together with the evidence provided at the hearing, is satisfied that there is a genuine sharing of household expenditure and pooling of financial resources by the couple.  Therefore, the Tribunal gives some weight in favour of the applicant.

    Nature of the household

17. The Tribunal heard from the applicant and witness about the home life that had been created by the couple.  The sponsor cleans the house and is very particular about the cleanliness of their rented home.  The applicant does all of the cooking.  The sponsor’s teenage children stay with them most weekends.  They spoke of the complexity and happiness around having teenagers in the house.

18. The sponsor’s father, Paul Guley, told the Tribunal that they were able to see their grandchildren in this home environment.  This would not be possible if the children were not at his son’s home each weekend.  This is because the sponsor’s divorce from his first wife had been acrimonious, and the grandparents do not have access to the children.

19. The Tribunal has considered the evidence which it finds to be consistent and credible.  Significant weight is placed in favour of the applicant.   

    Social aspects of the relationship

20. The Tribunal heard from witnesses that they often go to the couple’s home for meals.  The sponsor’s parents spend time and share a meal most weeks, although sometimes this is fortnightly.  The Tribunal heard that the applicant has made the home the hub for family celebrations and cooks Vietnamese food which everyone enjoys.

21. The Tribunal heard that the sponsor and applicant had both been in a bad state after their previous relationships as they had lost friends and were not socialising.  The Tribunal heard from a witness that this contrasts with their current lives as they visit friends in Sydney and regularly have friends stay at their home.   The Tribunal places strong weight in favour of the applicant and accepts that there is regular planning of social activities undertaken.  It is evident from the evidence submitted that they are accepted as a couple by those around them.

    Nature of the persons commitment to each other

22. The Tribunal heard that the applicant and sponsor started seeing each other in 2016.  In 2017 they commenced living together part time as a couple at the applicant’s flat in Footscray, which she shared with a friend.   They moved in together into their own rental property in Point Cook around March 2018.  Currently, they live together in their own rental property in Armstrong creek.  They have lived at this house for three (3) years.

23. The sponsor gave an emotional submission about his life after his divorce, meeting and marrying the applicant, the couple’s commitment to each other and how lost they would both be without each other.

24. It is clear from the evidence that there is a close relationship between the couple.  They provide each other with care, emotional support and draw companionship from the relationship. 

25. The couple spoke of their efforts to start a family together which has not been successful at this point because of continued stress around the applicant’s visa circumstance.  They are considering undertaking IVF treatment.  Further, they told the Tribunal at the hearing of their plans to start a Vietnamese restaurant in Geelong and that they had been looking for a suitable shopfront.

26. The couple told the Tribunal that in time they plan to purchase their own home and are saving as much as they can for a deposit.

27. The Tribunal has considered the material submitted, including the evidence provided at the hearing.  It is the finding of the Tribunal that the evidence is consistent and credible.  The applicant and sponsor have been in a committed relationship for the last five (5) years having moved in together in 2017.  They are making plans to start a business, buy their own home and have a child together.  The Tribunal finds that they consider the relationship as long term and places significant weight in the applicant’s favour.

    Any other circumstances of the relationship

28. The Tribunal is not aware of any other circumstances

29. The Tribunal finds that the applicant meets s 5F(2)(b)-(d) of the Act as they have a mutual commitment to shared life to the exclusion of others; are in a genuine and continuing relationship; and that they live together and not separately and apart on a permanent basis.

30. On the basis of the above, the Tribunal is satisfied that the requirements of s 5F(2) of the Act are met at the time the visa application was made.

31. Therefore, the applicant meets cl 820.211(2)(a) of the Regulations.

32. 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

33. 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(2)(a) of Schedule 2 to the Regulations

    Donna Petrovich
    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).