Ho (Migration)

[2022] AATA 398

Ho (Migration) [2022] AATA 398 (17 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Hong Trang Ho

CASE NUMBER:  1910331

DIBP REFERENCE(S):  BCC2016/1770981

MEMBER:P. Maishman

DATE:17 February 2022

PLACE OF DECISION:  Perth

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

Statement made on 17 February 2022 at 4:13pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – genuine and continuing relationship – validly married – financial, household and social aspects of relationship and nature of commitment not indicative of genuine relationship – relationship ceased and claim of family violence – family violence restraining order and professional reports do not establish nature of relationship at time of application – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2)(c), 65
Migration Regulations 1994 (Cth), r 15A(3), Schedule 2, cls 820.211(2)(a), 820.221(3)(a), (b)(i)

CASE
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 17 April 2019 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 17 May 2016 on the basis of her relationship with her sponsor, Remo Pedrin. At that time, Class UK contained Subclass 820. The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. 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.820.211 and 820.221 which require that at the time of application and decision, the applicant to be the spouse or de facto partner of the sponsor, unless the relationship has ceased and certain circumstances exist. These include that the applicant, or a member of the family unit, has suffered family violence committed by the sponsor: 820.221(3)(a) and (3)(b)(i). The applicant claims this occurred in this case.

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl.820.211(2)(a) because the delegate was not satisfied there was sufficient evidence to demonstrate the applicant was the spouse or de facto partner of her sponsor at the time of application.

5. The applicant appeared before the Tribunal on 4 August 2021 to give evidence and present arguments. The application was reconstituted before the Tribunal made a decision. A further hearing was required by the newly constituted Tribunal. The applicant attended a second hearing on 1 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence on 1 November 2021 from Mr Trevor Bonnett and Mr Mohamad Rofik. The Tribunal declined to hear from Ms Thi Lan Nguyen on 1 November 2021 because she had observed the earlier hearing.  

6. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Tribunal had before it a copy of the Department’s file containing the visa application, sponsorship form and documents the Department received. The applicant claims she was in a previous relationship that ended in July 1999. She has three children from that relationship the youngest born in February 1999. The sponsors previous marriage ended in divorce in June 2010. He has two adult children from that relationship. The applicant claims to have first met the sponsor in November 2015 and to have married in April 2016.

9. The applicant gave the Tribunal a copy of the delegate's decision record with her application for review. The delegate's decision record summarises the visa application history. The Tribunal received statutory declarations from Mr Bonnett and Mr Rofik; a translated outline of the applicant’s evidence; a family violence restraining order made final on 7 January 2020; a letter from Synergy dated 21 May 2019; a motor vehicle joint certificate of insurance dated 14 May 2019; and a submission from the applicant’s representative received 22 March 2021.

10. Following the initial hearing the applicant provided the Tribunal a copy of her 2019 tax return; receipts for travel to Vietnam; a number of photos; and a copy of her and the sponsor’s business card.

11. Mr Bonnett gave oral evidence of his observations of the relationship between the applicant and the sponsor. Mr Bonnett was an acquaintance of the sponsor through a mutual friend and workmate. He attended their wedding and socialised with them. Mr Bonnett observed the applicant did the gardens and kept the house nice. Mr Bonnett declared the relationship between the applicant and sponsor was initially genuine and happy. He noticed however the sponsor begin to talk badly about the applicant in front of other people. He would say she was no good and treated her badly. The relationship deteriorated to the point Mr Bonnett and his wife offered the applicant to come to their place if she was in trouble. Mr Bonnett said the sponsors behaviour deteriorated beyond what was tolerable and he turned bad. Mr Bonnett told the Tribunal he maintains a friendly relationship with the sponsor.

12. Mr Rofik is a workmate of the applicant. He gave evidence he worked with the applicant and lived with her and the sponsor for a short period shortly after they married. Because he is Muslim he did not share meals with them, however he observed they would sometimes go out for dinner. He observed the applicant and sponsor used to love and care for each other. The sponsor would sometimes be angry and hit things, but the relationship with the applicant appeared strong.

13. The Tribunal is mindful Mr Bonnett and Mr Rofik are the applicant’s friends and not disinterested observers. Both witnesses gave their evidence in a clear, unrehearsed and honest fashion. They individually addressed the Tribunal and their evidence appeared to be based on their own knowledge and observations. The Tribunal is satisfied both witnesses had some insight into the nature of the relationship between the applicant and the sponsor for the duration of the relationship. The Tribunal is satisfied both witnesses genuinely believe the applicant and sponsor had a genuine relationship which deteriorated over time based on their individual observations.  The Tribunal is satisfied they were both credible witnesses and accepts their evidence on that basis.          

14. The Tribunal had regard to the full written transcript of proceedings on 4 August 2021 as well as the oral evidence of the applicant and her witnesses heard on 1 November 2021.

    Whether the parties are in a spouse or de facto relationship

15. 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.

16. ‘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?

17. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal received a copy of a marriage certificate certified by the Registrar of Births, Deaths and Marriages. The certificate shows the applicant married sponsor in April 2016. There is nothing before the Tribunal to suggest 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 spouse relationship met?

18. The Tribunal considered the evidence relating to the reg 1.15A(3) matters at the time of application. 

19. The Tribunal has had regard to the evidence of the 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.

20. The applicant and sponsor opened a joint account (*1997) on 10 November 2016. The applicant gave the Tribunal a summary of transactions on the account for the period 3 January 2017 to 20 January 2017. While the summary indicates credits and debits, the period is of such short duration the Tribunal is unable to determine any pattern of expenditure that indicates the applicant and sponsor pooled their financial resources or shared day to day household expenses.

21. The electricity bill issued 21 May 2019 and the motor vehicle insurance due 14 May 2019 were obtained after the applicant received the delegates decision. The Tribunal notes the applicant included the sponsor on her 2019 income tax declaration completed on or after 1 July 2019. These documents, although they suggest some combined financial arrangement between the applicant and the sponsor after the delegates decision, do not demonstrate the nature of the relationship at the time of application.

22. The applicant denied the Tribunal’s suggestion she included her sponsor on her 2019 income tax return because the delegate’s decision was unfavourable. The applicant denied she did not provide her 2017 and 2018 income tax returns because she did not disclose a relationship on those declarations. The applicant said she changed accountants and that the sponsor was probably not included on those returns.  

23. The applicant told the Tribunal the sponsor was a truck driver. The sponsor did not work at the start of their relationship because he was sick. He did not receive any welfare payments and the applicant supported them both from her work at a vegetable farm for about 2 years after they married. The sponsor had his own bank account and the applicant did not know the balance or what funds he had available to him. They each contributed $750 to the deposit on a truck in around 2017. The truck cost $25,000 and the outstanding amount was to be repaid to the vendor in instalments when the sponsor started making money from driving the truck. The vendor was a friend of the sponsors. Everything was in the sponsor’s name; any income he earned went to his bank account; the applicant does not know how much her sponsor earned nor how much was repaid for the truck. The sponsor refused to insure the truck because it was too expensive. The applicant said she paid for joint insurance on a motor vehicle. She does not know how much money the sponsor had; he always knew how much she had.

24. The financial aspects of the applicant and sponsor’s relationship are not indicative of a couple in a marriage relationship. Although the applicant claims a joint business enterprise with the  sponsor, there is no documentary evidence to support the claim. The contribution of funds by the applicant is not demonstrated in either her joint account transaction summary, and her involvement in the business is not indicated in her 2019 income tax return. The purchase of a truck is a minor investment, however the applicant has no knowledge of the operation of the business, of the income of her husband from driving, or the repayment of the vendor finance. The applicant and sponsor have no joint assets and no joint liabilities. The sponsor did not pool his financial resources with the applicant and they did not share the day to day living expenses.          

25. The Tribunal considered the nature of the applicant and sponsor’s household including any joint responsibility for care and support of children, parties' living arrangements, and any sharing of housework.

26. The applicant shared a house with the sponsor and, for a time, Mr Rofik. The house belonged to the farm for which the sponsor did odd jobs. The applicant says she paid rent on the property but there was no lease. The applicant cared for the house to make it nice for the sponsor’s children and grandchildren to visit. The applicant did most of the cooking and cleaning because it is her role to look after her husband. Sometimes the sponsor would put the rubbish out.

27. The assessment of the nature of the applicant and sponsor’s household is neutral in the assessment of whether the applicant and sponsor were a couple in a genuine marriage relationship. The applicant claims to have shared a bedroom with the sponsor and the applicant cared for the home to make it nice. The applicant’s description of caring for the house is supported by the observations of Mr Bonnett and Mr Rofik. The parties have no children for whom they are jointly responsible.

28. The Tribunal considered the social aspects of the applicant and sponsor’s relationship, including whether they 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.

29. The photographs of the applicant and sponsor together are limited to a few of occasions including their wedding ceremony, a social function with the applicant’s fellow workers and some holiday pictures. There were few attendees at the applicant and sponsor’s wedding ceremony and their respective families did not attend. The applicant described she and the sponsor met with his daughters the night before the wedding, she thinks one daughter did not attend their wedding because the grandchildren are too young. The applicant claims the sponsor’s daughters came to the party afterwards.

30. The applicant claims to have travelled to Vietnam with the sponsor on two occasions. The first trip is evidenced by boarding passes and a receipt given to the Department on 11 April 2019. The boarding passes show the applicant and sponsor boarded a flight to Singapore on 25 July 2018 and were seated together. The receipt, untranslated from Vietnamese, appears to have been issued the names of both the applicant and sponsor on 25 August 2018. The  parties travelled together to Vietnam together for a month in July/August 2019. The Tribunal notes this travel was after the delegates decision. The boarding passes indicate they travelled together on the return and departing trips. Translated receipts indicate the parties used both their names to make payment for accommodation between 13 August 2019 and 18 August 2019.  There are a few photos of the applicant and sponsor together and the photograph showing the applicant and sponsor with the applicant’s daughters. 

31. The Tribunal acknowledges the applicant and sponsor attended a social function at the farm at which the applicant works.

32. Mr Bonnett and Mr Rofik both provided statutory declarations and oral evidence and consider the applicant and sponsor were in a genuine relationship.  

33. The applicant obtained a Family Violence Restraining Order (the Order) against the sponsor which was made final on 7 January 2020 in force for 2 years from 13 December 2019. The applicant reported her relationship with the sponsor to her general practitioner and a psychologist in May 2021 and they respectively prepared a mental health plan and a report May 2021. The Tribunal acknowledges the issue of the order suggests some recognition of a family relationship between the applicant and sponsor by the police and Court. The Tribunal accepts the Order was served on the sponsor, and he accordingly had the opportunity to object to the Order prior to it becoming final. However the Court and medical professional recognition were obtained some time after the applicant received notice her visa was refused and do not demonstrate social recognition of her relationship at the time of application. The Tribunal does not consider these documents indicate the existence of a genuine relationship in the period leading up to their production.        

34. The social aspects of the applicant and sponsor’s relationship are not indicative of a couple in a genuine marriage relationship. The photographs provided show very little interaction with each other when compared to the claimed duration of their relationship. While the sponsor photographed with the applicant’s daughters, the parties’ families did not attend their wedding. The Tribunal acknowledges Mr Bonnett and Mr Rofik’s favourable evidence, however the lack of any other plausible evidence that might be expected to accrue during a genuine relationship is more indicative that the parties’ relationship is not recognised more broadly socially.          

35. The Tribunal considered the evidence of the applicant and sponsor’s commitment to each other, including the duration of their relationship; the length of time they lived together; the degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.       

36. The applicant told the Tribunal she was in Australia as the holder of a tourist visa at the end of 2015 and her friend introduced her to the sponsor. The sponsor had recently had a cancer operation. She moved in with him because she liked him. He proposed to her soon after they met. She knew his circumstances were miserable and he had no one to cook, clean or help him. The applicant says she expected their relationship to be enduring.  

37. The submissions of applicant’s representative’s dated 21 March 2021 claims the sponsor suffered family violence many times during the relationship. Their life was up and down and the sponsor controlled her daily activities, prohibiting her from having Vietnamese friends and he was not happy the applicant wanted to join the workforce. The representative submitted the sponsor hit the applicant badly if she spoke back to him. In her oral evidence the applicant told the Tribunal their relationship was very nice until after their 2019 trip to Vietnam; the sponsor did not hit her or forbid her to make friends; and the sponsor only objected to her working late and accused her of having a boyfriend.

38. Based on the applicant’s evidence, supported by the Family Violence Restraining Order, the Tribunal accepts the sponsor was violent to the applicant in December 2019. 

39. The evidence of the nature of the applicant and sponsor’s commitment to each other does not demonstrate they were a couple in genuine spouse relationship. The Tribunal accepts the applicant may have looked after the sponsor in the early days of their relationship as he recovered from cancer treatment. The relationship developed rapidly with the parties knowing each other for less than six months when they married and the applicant made her visa application. There is little objective evidence to show the parties lived together for the claimed duration of their relationship or that sponsor provided emotional support or companionship to the applicant.

1. Having considered the reg 1.15A(3) matters the Tribunal is not satisfied that at the time of visa application the relationship between the applicant and sponsor was genuine and continuing as required by s 5F(2)(c).

2. 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.

3. Therefore the applicant does not meet cl 820.211(2)(a).

4. The applicant has not held a Subclass 300 visa and has made no claim that she meets the alternative criteria in cl 820.211(5), (6), (7), (8), or (9).

5. As the Tribunal has determined the applicant was not the spouse of the sponsor at the time of application, she cannot meet the time of decision requirements. The Tribunal therefore is not required to further consider the applicant’s claim for family violence.

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

   DECISION

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

   P. Maishman
   Member

   
   

   ATTACHMENT – EXTRACTS FROM THE 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).