Ho (Migration)

[2023] AATA 3061

Ho (Migration) [2023] AATA 3061 (5 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Le Phuong Dan Ho

REPRESENTATIVE:  Mr Rodney Calhaem (MARN: 9581377)

CASE NUMBER:  1927593

HOME AFFAIRS REFERENCE(S):          BCC2018/4000710

MEMBER:David Crawshay

DATE OF ORAL DECISION:  5 September 2023

DATE OF WRITTEN STATEMENT:         21 September 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:

·cl.820.211 of Schedule 2 to the Regulations; and

·cl.820.221(1) of Schedule 2 to the Regulations.

Statement made on 21 September 2023 at 12:08pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – pooling of financial resources – joint residence – multiple statements of support – companionship and emotional support – decision under review remitted    

LEGISLATION

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

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 29 June 2018 on the basis of her relationship with her 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. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(a) because the delegate found that there was insufficient evidence to demonstrate that the applicant was the spouse of the sponsor at the time of application.

3. The applicant appeared before the Tribunal on 5 September 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and from Ms Trang Vo, who is the applicant’s aunt. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant was the spouse of the sponsor at the time of application and whether she continues to be his spouse at the time of this decision.

   Whether the parties are in a spouse or de facto relationship

6. 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.

7. “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 r.1.15A(3), which is extracted in the attachment to this decision.

   Are the parties validly married?

8. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal has sighted a copy of a certificate for a marriage that took place on 17 December 2017. It is satisfied that the document is genuine and that the parties were free to marry each other. 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?

9. The parties have provided the Tribunal with a number of documents since the delegate’s decision, including:

   ·statements from a joint transaction account for the period from August-to-October 2019;

   ·Letters from the parties’ superannuation funds regarding death nominations, dated October 2019;

   ·residential tenancy agreement for an address in Springvale South for the period from September 2019 to February 2020;

   ·various pieces of correspondence addressed to one or both parties at the Springvale South address and at an address in Keysborough;

   ·numerous photographs of the parties, including at formal and informal social events and at their wedding party in Vietnam in November 2017;

   ·Form 888 statutory declarations from the parties’ family members and friends, dated October 2019, April 2023 and August 2023;

   ·records of the parties’ communications with each other; and

   ·a joint statement dated 5 April 2023.

10. The Tribunal considers this information to be directly relevant to the four matters under r.1.15A and ultimately to the three remaining criteria under the definition of “married relationship” in s.5F(2). Much, if not all, of this information will be forwarded to the Department along with this decision.

    Financial aspects of the relationship

11. Based on the information in front of it, the Tribunal makes the following findings. It finds that the parties do not own any joint real estate or other major assets, not do they have any joint liabilities. These aspects are accorded no weight.

12. In terms of the extent of any pooling of financial resources and the basis of any sharing of day-to-day household expenses, the Tribunal notes that the parties opened a joint bank account in November 2017. At hearing, the Tribunal heard from the applicant that the sponsor redirected his salary payments into the joint account after having previously had them go into his personal account, although he has since redirected it back into his personal account. She said that her salary is directed into her personal account. The applicant said that the rental payments have been taken out of the sponsor’s account for the last two years, and the Tribunal was able to verify this claim after having sighted netbank records at hearing.

13. The Tribunal has considered the information in front of it relating to these two aspects. It accepts that the sponsor pays for rent out of his personal account. However, there is very little if any documentary information of a contemporaneous nature to substantiate the parties’ claims that they share other day-to-day household expenses. Therefore, while some weight is accorded to these aspects, this weight is diminished.

14. Lastly, and in terms of whether the parties owe any legal obligations in respect of the other, they both provided evidence that they had made nominations in favour of the other party for superannuation purposes in October 2019. While the Tribunal accepts that these arrangements can be easily amended, it gives this information some weight.

15. Although the Tribunal accepts as a general rule that parties who maintain separate bank accounts can still have a high degree of financial integration, the lack of evidence of such integration in the present matter means that it is not able find in favour of the parties having a genuine and continuing relationship based on the financial aspects of their relationship.

    Nature of the household

16. There are no children of the parties’ relationship, and neither party has any children of previous relationships. No weight is accorded to this aspect.

17. In terms of the parties’ living arrangements, they claim to have first moved into the house of the sponsor’s sister in Springvale before moving out to the Springvale South address. More recently, they claim to have moved into the Keysborough address in February 2020. A rental agreement for the period from September 2019-to-February 2020 shows them as being tenants of the Springvale South address along with two other tenants. This follows earlier rental agreements for the same address from earlier in 2019. The Tribunal has also seen correspondence addressed to one or both parties at the Springvale South and Keysborough addresses, and again this supplements earlier such correspondence addressed to the Springvale and Springvale South addresses. Finally, the Tribunal has considered an unwitnessed Form 888 declaration from a Ms Sandy Le from April 2023, who claims to have been living with the parties at the Keysborough address.

18. At hearing, the parties spoke in similar terms when describing their movements over a typical day. Both described having to wake up early due to their jobs and returning home at a similar time in the afternoon (between 3:00pm and 3:30pm). Both described how the sponsor has a strict training and nutrition regimen for his boxing. In terms of training, this entails him having to train after work for around two hours. In terms of nutrition, he eats mainly chicken and rice.

19. Taken in totality, the Tribunal accepts that this information shows that the parties have been living together at the addresses in Springvale, Springvale South and Keysborough as members of a committed relationship since December 2017. This aspect is given substantial weight.

20. The Tribunal finds that the nature of the household indicates that the parties have been living together at the time of application and at the time of this decision and have been in a genuine and continuing relationship at those times.

    Social aspects of the relationship

21. The Tribunal has seen numerous photographs of the parties. These have variously included members of both families, including the applicant’s mother and father during their visits to Australia, and the sponsor’s mother and stepfather as well as some photographs of them around the house. Significantly, the parties have submitted photographs of their wedding in Vietnam, which included a traditional engagement ceremony as well as a more Western-style reception that was attended by many guests including the applicant’s parents and Australian-based aunt and the sponsor’s mother. The delegate’s decision indicated that these photographs were not provided to the delegate. Having now been provided these photographs, the Tribunal accords them substantial weight as being evidence of the parties having represented themselves to family and friends as being in a married relationship from before the time of application.

22. In terms of the opinions of the parties’ friends and acquaintances about the nature of their relationship, the Tribunal has received 17 Form 888 statutory declarations from friends, work colleagues and family members. The authors of the declarations attest to the genuineness of the parties’ relationship based on their interactions with them. Although some of the authors were associated mainly with one of the parties (invariably the applicant), other authors claim to see them regularly.

23. The Tribunal was also able to interview one of the authors of those declarations, the applicant’s aunt Ms Trang Ho, who told it that the sponsor takes very good care of the applicant and respects her. She said that they live in a happy relationship and that she sometimes cooks for them.

24. Based on this information, the Tribunal accepts that the parties are regarded as being in a married relationship by a wide range of people – comprising friends, colleagues and family members. This aspect is given significant weight.

25. The Tribunal finds that the social aspects of the parties’ relationship points firmly in favour of them being in a genuine and continuing relationship at the time of application and at the time of this decision.

    Nature of the parties’ commitment to each other

26. According to the parties, they claim to have met in December 2016 at the restaurant where the applicant used to work – Hoi An Village in Springvale South. They claim that the sponsor was a friend of the owner’s son and manager, Kenny, and that the parties would see each other when the sponsor came in to meet with Kenny and have meals there. The parties claim that the sponsor then worked at the restaurant for around four months in order to earn extra money. They claim that the sponsor would pick the applicant up from the house where she lived with her brother and another family.

27. The Tribunal has had regard to the substantially similar nature of the parties’ answers to its questions at hearing about the inception and development of their relationship. It accepts based on this and based on photographs of the parties from as early as July 2017 that they met as claimed. It accepts that they were legally married in December 2017, having had an engagement ceremony in Vietnam in November 2017. It accepts that they had been in a relationship since around mid-2017, meaning that they have been in a relationship for around a year at the time of application and for more-than-six years at the time of this decision. As above, it accepts that they have been living together since December 2017. These aspects are given weight.

28. Turning to the degree of companionship and emotional support that the parties draw from each other and whether they see their relationship as a long-term one, the Tribunal has considered records of communications between the parties during various stages of their relationship. These chains of messages appear to show spontaneous communications between them and are redolent of a couple in a relationship. The Tribunal has also considered that the parties showed a detailed knowledge of each other’s personal lives. It accepts based on this and other information that the parties draw a high degree of companionship and emotional support from each other. These aspects are given substantial weight.

29. The Tribunal finds that the nature of the parties’ commitment to each other indicates that they have a mutual commitment to a shared life as a married couple to the exclusion of all others and that they have been in a genuine and continuing relationship at all material times.

    CONCLUSION

30. Having taken into account the matters set out in r.1.15A(3) in relation to the definition of spouse under s.5F(2) and based on the information in front of it and the above findings, the Tribunal accepts that at the time the visa application was made and at the time of this decision the parties have had a mutual commitment to a shared life together as a married couple to the exclusion of all others, their relationship has been genuine and continuing and they have lived together.

31. Therefore, the parties were in a married relationship for the purposes of s.5F(2) and the applicant is the spouse of the sponsor under s.5F(1) at that time. The applicant meets cl.820.211(2)(a).

32. The Tribunal is satisfied that the applicant was sponsored by the sponsor at the time of application pursuant to cl.820.211(2)(c)(i). Lastly, the Tribunal accepts that the visa application was made within 28 days after the applicant’s previous substantive visa ceased so she is not subject to the Schedule 3 criteria under cl.820.211(2)(d)(ii). Therefore, the applicant meets cl.820.211(2). Because the applicant was not the holder of a Subclass 771 (Transit) visa at the time of application, she meets cl.820.211.

33. The applicant continues to meet the requirements of cl.820.211(2) at the time of decision. She therefore meets cl.820.221(1). The Tribunal does not have enough information to ascertain whether any sponsorship limitations apply pursuant to cl.820.221(4)(a) and will leave this task to the Department.

34. 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

35. 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 of Schedule 2 to the Regulations; and

    ·cl.820.221(1) of Schedule 2 to the Regulations.

    David Crawshay
    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).