Duong (Migration)

[2024] AATA 660

Duong (Migration) [2024] AATA 660 (20 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Thanh Duc Duong

REPRESENTATIVE:  Ms My Yen Tran

CASE NUMBER:  2311499

HOME AFFAIRS REFERENCE(S):          BCC2015/1458730

MEMBER:Jennifer Cripps Watts

DATE:20 March 2024

PLACE OF DECISION:  Sydney

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

Statement made on 20 March 2024 at 4:07pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Circuit and Family Court remittal – genuine and continuing relationship – validly married – limited financial and social aspects of relationship and nature of household at time of application typical of young couple living with sponsor’s family – nature of commitment – relationship ceased – new Australian citizen partner and child expected – consent to decision without hearing and intention to apply for ministerial consideration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 15A(3), Schedule 2, cls 820.211(2)(a), 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 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 21 May 2015 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 applicant did not satisfy cl 820.211(2)(a) of Schedule 2 to the Regulations because the Minister was not satisfied the applicant and sponsor (the parties) were in a ‘married relationship’ as it is described in s 5F(2) of the Act.

4. The applicant’s partner visa was refused on 24 November 2016.  On 1 December 2016, the applicant applied to the Tribunal for review of the decision to refuse his partner visa. 

5. On 30 April 2018, a different member affirmed the decision to refuse the visa in Tribunal matter number 1620345.  The applicant applied for judicial review of the Tribunal’s decision and, on 27 June 2023, judgment was handed down in favour of the applicant in the Federal Circuit and Family Court of Australia (Division 2).  The applicant’s matter has been constituted to a different member, current Tribunal matter number 2311499; the previous Tribunal failed to set out how it had intellectually engaged with the matters required to be addressed under reg 1.15A(3)(d)(i), (ii) and (iv) of the Regulations, relating to the parties’ commitment to each other.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant and sponsor (the parties) are in a genuine and continuing married relationship at the time of this decision: cl 820.221 of Schedule 2 to the Regulations.

8. To meet the time of decision criteria cl 820.221, the applicant, who is an applicant referred to in cl 820.211(2) of Schedule 2 to the Regulations, must continue (relevantly in this case) to meet the requirements of cl 820.211(2)(a), that is, to continue to be the spouse of the sponsoring partner, unless certain exceptions apply.

9. On 20 March 2024, the Tribunal received a signed and dated written statement from the applicant in which he includes and confirms the following:

   ·He is the review applicant in case number 2311499 (the current matter number for review of the decision made by the Minister on 24 November 2016)

   ·The relationship with the sponsor Ngoc Nhi Kathy Le has ‘now broken down’

   ·He is in a new relationship with his partner, who is an Australian citizen, and they are expecting their first child in July 2024

   ·That he wishes the hearing scheduled on 25 March 2024, and to which the applicant had been invited in writing to appear before the Tribunal, be ‘vacated’ and a decision made ‘on paper’

   ·That he intends to request that the Minister intervene in his case on ‘compelling and compassionate grounds’

10. The Tribunal considered the written statement and is satisfied that the applicant was effectively waiving his right to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision (made by the Minister on 24 November 2016); and was consenting to the Tribunal deciding the review without him appearing before it.  It is plainly implied that the applicant understands the Tribunal’s decision will not be favourable to him given his stated intention to use the Tribunal’s decision to apply to the Minister.

11. At the time of the Tribunal’s decision, the applicant must continue to meet the time of application criteria, in this case cl 820.211(2)(a), requiring him to continue to be in a married or de facto relationship with the sponsor.  There are certain exceptions where the applicant would, at the time of decision, continue to meet the time of application requirements except that the relationship has ceased.  In summary this is in circumstances where the sponsor has died; the applicant or a member of his family unit has suffered family violence committed by the sponsor; or where there is a child or children and orders have been made relating to custody, contact or child maintenance.

12. The applicant has informed the Tribunal in writing that the relationship with the sponsor in this case has ceased and that he is now in a relationship with someone else.  The applicant has made no claim, nor is there any information before the Tribunal, that any of the exceptions that may apply where a relationship has ceased, apply in this case.

    Whether the parties are in a spouse or de facto relationship

13. ‘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.

    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.  The applicant has provided evidence of the parties’ marriage, registered in May 2014.

15. On the evidence, the Tribunal finds that 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?

16. The Tribunal has had considered information and evidence on the Department and Tribunal files, and evidence given at the earlier Tribunal hearing, relevant to the material issues on review.

17. The previous Tribunal’s decision was made on 30 April 2018.  No additional evidence in support of the relationship between the parties has been received since then.  The judicial review process took some five or so years and the applicant has now informed the Tribunal that he and the sponsor are no longer in a relationship.  Although the applicant did not specify a date when the relationship broke down the Tribunal accepts, on the applicant’s written evidence, that the relationship between the parties has ceased.

    Relationship background

18. The applicant is a national of Vietnam, born in 1992.  The sponsor is an Australian citizen, born in 1994.  In November 2012 the applicant arrived onshore holding a student visa.  In March 2019 the parties married each other and, on 19 May 2015, they lodged the partner visa application that is the subject of this review.

    Financial aspects of the relationship:  reg 1.15A(3)(a)

19. At the time of application, the parties provided bank statements for a joint account and claimed that they pooled their financial resources.  The primary source of the funds they pooled for their day-to-day costs of living was from their individual salaries.  They were, as a couple, young and of fairly limited means and did not declare any joint assets, which the Tribunal does not consider to be unusual in such circumstances.

20. In the parties’ circumstances, the Tribunal is satisfied that at the time of application the financial aspects of their relationship indicated they shared finances as a typical young married couple might.

    Nature of the household:  reg 1.15A(3)(b)

21. The parties’ evidence relating to their household was generally consistent between them.  The applicant and sponsor were quite young when they got married in 2015; they were 21 and 23 years of age.  At the time of application the Tribunal is satisfied that the parties lived together with the sponsor’s father and his wife, and three children, in a three bedroom townhouse.  In these circumstances, the Tribunal is unconcerned that there was no lease or evidence or rental receipts or ledgers relating to the parties’ household.  It was a private arrangement where a young married couple were living with the wife’s family in a multi-generational household.

22. In the circumstances described above, the Tribunal is satisfied that the parties shared a household and supported the children together.

    Social aspects of the relationship

23. The parties provided a fair amount of evidence indicating that they represented themselves as married to each other and the opinions of friends and family that have been provided or given confirms this, especially when considered together with the photographic evidence provided.

24. The parties provided photographs of the wedding, photographs of themselves together and with others, including family members and friends, in various social settings.  They document the parties celebrating significant events together.

25. There were written statements from family members provided in support of the marriage, and witnesses gave oral evidence in support of the relationship at the earlier Tribunal hearing in 2018.

26. The Tribunal is satisfied that the parties represented themselves socially as a married couple and that they undertook joint social activities.

    Nature of the parties’ commitment to each other

27. The parties claim to have first met each other around Christmas in 2013.  They got married in Australia in March 2015.  At the earlier Tribunal hearing, the parties were asked about their future plans.  Obviously these did not eventuate in any meaningful sense because the relationship has now ceased.   

28. The Tribunal does not know when the parties’ relationship ceased.  However, in 2018 the parties appear to have been together for over four years, which is a significant period of time.  It may have been longer.  On the evidence given in writing and at the 2018 hearing, the Tribunal is satisfied that the parties provided some degree of companionship and emotional support to each other and that at the time of application they saw the relationship as long term.

29. Having considered the matters in reg 1.15A(3)(a)-(d), the Tribunal is satisfied that at the time of application the parties had a mutual commitment to a shared life to the exclusion of others; they had a genuine and continuing relationship; and they lived together or 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) are met at the time the visa application was made.

31. Therefore the applicant meets cl 820.211(2)(a) of Schedule to the Regulations at the time of application.

32. At the time of the Tribunal’s decision, the parties must continue to be in the married relationship to meet the time of decision primary criteria cl 820.221.  The applicant has informed the Tribunal in writing, and the Tribunal has accepted, that the relationship between the parties has ceased and that none of the exceptions to the requirement that the married relationship be continuing are applicable.

33. There the applicant does not meet cl 820.221 of Schedule to the Regulations at the time of this decision.

    Ministerial Intervention

34. In the applicant’s written statement to the Tribunal signed and dated 20 March 2024, he informed the Tribunal that he intends to ‘…seek the Minister’s Discretion under 351 of the Migration Act to intervene in my case on compelling and compassionate grounds’ and requested that the Tribunal ‘make a note to that affect’ in its decision. The information is so noted. The applicant did not request the Tribunal refer his matter to the Minister. With reference to this decision, the applicant now has an appropriate decision to make the application if he chooses to do so.

    DECISION

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

    Jennifer Cripps Watts
    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).