Ho (Migration)

[2024] AATA 3691

Ho (Migration) [2024] AATA 3691 (8 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr The Minh Khuong Ho

VISA APPLICANT:  Ms Thi Hong Dinh

REPRESENTATIVE:  Mr Michael Cai (MARN: 1799864)

CASE NUMBER:  2000767

DIBP REFERENCE(S):  BCC2018/6007135

MEMBER:Rachel Westaway

DATE:8 August 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 08 August 2024 at 12:31pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa - subclass 309 – applicant failed to provide requested information within the period – relationship with the sponsor had ended –– not satisfied that the parties are in a genuine and continuing relationship – decision under review affirmed     

LEGISLATION
Migration Act 1958, ss 5F,65, 359
Migration Regulations 1994, r 1.15, Schedule 2, cl 309.211

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 Immigration on 13 January 2020 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 7 January 2019 on the basis of her relationship with her sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211(2) because the delegate found that the evidence provided was not sufficient to demonstrate that the applicant was the spouse, as defined under s 5F of the Act, of a person who is an Australian citizen, an Australian permanent resident, or eligible New Zealand citizen.  

4. The review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Background

7. The visa applicant, Ms Thi Hong Dinh (‘the applicant), is a Vietnamese national who was born on 17 June 1995 and is 27 years old. The applicant stated that she had not been in any previous relationships.  

8. The review applicant, Mr The Minh Khuong Ho (‘the sponsor’), is an Australian citizen who was born on 30 July 1981 and is 41 years old. The sponsor listed one previous relationship in his Form 40SP which ended in separation on 1 January 2012 and stated that there were two children of the relationship.

9. The visa applicant arrived in Australia on a Student visa on 3 April 2014.

10. The visa applicant and sponsor claim to have first met in person on 16 January 2016 at the wedding of a mutual friend. They claim that after this day they began to spend time together and developed a relationship on 14 February 2016 when the sponsor expressed his love to the applicant. They claim that the sponsor proposed marriage to the applicant on 17 June 2016 and the applicant accepted.

11. On 28 March 2017, the visa applicant’s student visa was cancelled, and she remained unlawfully in Australia.

12. The visa applicant and sponsor committed to a shared life together to the exclusion of all others when they married on 21 May 2017 in Albanvale, Victoria. On 30 August 2018, the applicant and sponsor departed Australia together for Vietnam, and a wedding ceremony and reception was held in Vietnam on 14 September 2018. The sponsor returned to Australia on 25 September 2018.

13. The sponsor claims to have visited the applicant in Vietnam from 13 November 2018 to 27 November 2018, and again on 29 January 2019 to 1 February 2019.

14. The visa applicant has not visited Australia since departing on 30 August 2018, and departmental records indicate that the sponsor had not returned to Vietnam since 1 February 2019.

    The Department Application

15. The applicant lodged a valid application for a Partner (Temporary) (Class UF) (Subclass 309) visa and a Partner (Residence) (Class BC) (Subclass 100) visa on 7 January 2019 on the grounds of being in a partner relationship with an Australian citizen, the sponsor, who lodged a sponsorship in support of the application.

16. The applicant and sponsor provided the following evidence in support of the application:

    ·Copy of the sponsor’s Australian passport biodata page

    ·Copy of the applicant’s Vietnamese passport biodata page

    ·Copy of the applicant’s Vietnamese identity card

    ·Copy of the applicant’s Vietnamese Birth Certificate

    ·Australian Marriage Certificate dated 21 May 2017

    ·Certified Marriage Certificate registered on 6 June 2017

    ·Form 888 statutory declaration of Hoang Thai Ma dated 9 January 2019

    ·Form 888 statutory declaration of Minh Quang Le dated 9 January 2019

    ·Form 888 statutory declaration of Van De Vo dated 9 January 2019

    ·Statement of Relationship by the applicant dated 23 November 2019

17. On 13 January 2020, the Department made a decision to refuse to grant the applicant the visa on the basis that the applicant did not meet the requirements of subclause 309.211(2), as the delegate found that the evidence provided in support of the application was not sufficient to demonstrate that the applicant was the spouse, as defined under s 5F of the Act, of the sponsor.

    The Tribunal Application

18. The sponsor applied to the Tribunal to review the Department’s decision to refuse the visas on 16 January 2020. A copy of the Department’s decision record and notification letter was provided with the review application.

19. On 24 February 2023, the Tribunal wrote to the sponsor’s representative under s.359(2) of the Act inviting the applicant and sponsor to provide further information to support their claims that they are in a spouse or de facto relationship. The letter provided the applicant and sponsor with 14 days to provide this information, unless an extension request was made and accepted by the Tribunal. The letter stated that if the Tribunal did not receive the information within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the information, and that the applicant and sponsor would lose any entitlements they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments at a hearing.

20. The Tribunal did not receive the information requested within the period allowed and no requests for an extension of time to respond was received by the Tribunal.

21. On 27 February 2023, the Tribunal received an email from the authorised representative advising that the visa applicant had advised that her relationship with the sponsor had ended and that the review application ought to be withdrawn. The representative stated that they had lost contact with the sponsor and had no other means of contacting him for the purpose of him signing a withdrawal form.

22. On 15 March 2023, the Tribunal wrote to the authorised representative requesting that the representative completed the enclosed ‘Withdrawal of Application – MR Division’ form, noting that the form stated that the Withdrawal form could be completed by the review applicant (the sponsor) or by his or her representative.

23. No response was received and on 7 July 2023, the Tribunal advised the representative that it was unable to accept the request to withdraw as sent on 27 February 2023 and noted that the matter was in the process of being listed for hearing.  The hearing was scheduled for 27 July 2023 and the hearing invitation was sent to the representative on 7 July 2023.

24. On 17 July 2023, the Tribunal received an email from the representative confirming receipt of the hearing invitation and noting that he (and other various representatives associated with his firm who had carriage of the matter previously) made numerous attempts to contact the review applicant (sponsor) with no success and requesting an adjournment due to inability to obtain instructions.  On 19 July 2023, the Tribunal advised the representative that the postponement request was denied and that the hearing would proceed as scheduled on 27 July 2023.

25. On 19 July 2023, the Tribunal received a hearing response from the representative advising that the applicant would not participate in the hearing and consenting to the Tribunal making a decision on the papers.

26. The Tribunal has progressed to making a decision on the papers with the material before it.

    SPOUSE/DE FACTO (cl.309.211(2), cl.309.221)

    Whether the parties are in a spouse or de facto relationship

27. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa 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 to be the spouse of the review applicant who is an Australian citizen.

28. ‘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 review applicant’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP[2017] FCAFC 206.

    Are the parties validly married?

29. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant provided a copy of the Australian Marriage Certificate dated 21 May 2017 and a Certified Marriage Certificate registered on 6 June 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?

30. The Tribunal has no information before it other than the material on the Department file and the visa applicant’s advice through the sponsor’s representative that the relationship has ended.

31. The Tribunal has considered the summary of the relationship development noting that the applicant came to Australia on the 3 April 2014 as a student and that they met at a wedding. The relationship developed by the 14 February 2016. The sponsor proposed to the applicant on 17 June 2016. The applicant’s student visa was cancelled on the 28 March 2017, and she remained unlawfully in Australia.

32. Their marriage was registered on the 21 May 2017 and the applicant and sponsor travelled to Vietnam on the 30 August 2018. A wedding celebration was held on the 14 September 2018 in Vietnam and the sponsor returned to Australia on the 25 September 2018.

33. The sponsor returned to Vietnam from 13 November 2018 to 27 November 2018 and they applied for the visa under review on 7 January 2019.

34. The sponsor travelled again to Vietnam from 29 January 2019 to 1 February 2019 and Departmental systems indicate that the sponsor has not departed Australia and the applicant has not travelled to Australia since the sponsor returned to Australia on the 1 February 2019.

35. The material on the Department file and in the delegates, decision contains the following and has been used in the review of the decision.

    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; any sharing of day-to-day household expenses.

36. Provided with the application was a joint account held with Westpac Bank for the period of 28 February 2019 to 26 October 2019.

37. There has been no further evidence of their commitment to the pooling of shared financial resources or money transfers.

38. The Tribunal is not satisfied that the evidence supplied to support a financial commitment between the applicant and sponsor is sufficient to support the existence of a genuine and continuing relationship between the applicant and sponsor from the time of application of at the time of this decision.

    Nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

39. The applicant and sponsor have not provided any evidence regarding the nature of the household as such the Tribunal is not satisfied that the nature of the household supports the existence of a genuine and continuing relationship since February 2016 and living together as spouses since May 2017. Further there is no evidence of a joint household to demonstrate that when the sponsor and applicant were in Vietnam together that they resided together.

    Social aspects of the relationship – including whether 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 persons plan and undertake joint social activities.

40. The Department file contains a selection of photographs of the couple with family and friends and the Tribunal accepts that the couple are known to each other and have socialised together and have travelled together as well as the provision of photographs at their wedding, signing their marriage certificate in Australia and at their engagement ceremony and wedding reception.

41. Statutory declarations have been supplied at application stage from the sponsor’s friends which attest that they are aware of the relationship. However, there is no current and relevant material to support the ongoing nature of the relationship since this period of time.

42. As such the Tribunal does accept that the sponsor and applicant represented themselves as a couple at the time of application but there is no evidence to support the development of the relationship and how they represent themselves at the time of decision. As at the review applicant’s migration agent has advised the relationship has ended, the Tribunal finds that there is insufficient evidence to support that the couple undertake social activities together and represent themselves as a couple at the time of decision.

    Nature of persons' commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

43. The Tribunal has considered the nature of the couple’s commitment to each other, and the relationship statements provided at application stage. The sponsor’s migration agent has subsequently declared that the relationship has ended and there is no evidence to counter this. If the relationship was ongoing, the Tribunal would expect to see the development of the relationship and be provided of evidence regarding their plans for the future and an understanding of how the relationship and their commitment has developed.

44. Some evidence at application stage was provided to demonstrate that the couple were in contact with each other such as text messages and calls via Messenger (Facebook) between March 2019 to October 2019 but no further evidence has been provided.

45. Other than the travel outlined above, there is no evidence that the applicant and sponsor have met again. The Tribunal is not satisfied that the nature of their commitment to each other represents a genuine and continuing relationship.

    Any other circumstances of the relationship.

46. There is no evidence of children of the relationship, any claims of family violence or the death of the sponsor. As such these issues have not been considered.

47. As discussed above the sponsor’s migration agent has confirmed that the relationship has ended.

48. Given the findings above and considering both individually and cumulatively the evidence before the Tribunal, the Tribunal is not satisfied that there is sufficient evidence to support that the couple at the time of application and at the time of decision had a mutual commitment to shared life to the exclusion of others; that their relationship is genuine and continuing; and live together and not separately and apart on a permanent basis.

49. On the basis of the above the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time the visa application was made or the time of this decision.

50. Therefore, the visa applicant does not meet cl.309.211 or cl.309.221.

51. For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.

    DECISION

52. The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

    Rachel Westaway
    Senior Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (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).