HO (Migration)

[2023] AATA 2247

HO (Migration) [2023] AATA 2247 (25 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Thi Suong HO

VISA APPLICANT:  Mr Dinh Toan Nguyen

REPRESENTATIVE:  Ms Phuong Thi Kim Tran (MARN: 1801018)

CASE NUMBER:  1837642

DIBP REFERENCE(S):  BCC2018/178135

MEMBER:Kira Raif

DATE:25 May 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211 of Schedule 2 to the Regulations

·cl.309.221 of Schedule 2 to the Regulations

Statement made on 25 May 2023 at 1:05pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – financial aspects – periods of cohabitation – social aspects – companionship and emotional support – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 309.211, 309.221

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 5 November 2018 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 is a national of Vietnam, born in April 1960. He applied for the visa on 11 January 2018 on the basis of his relationship with his sponsor. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.211 because the delegate was not satisfied the applicant was the spouse of the sponsor. The sponsor (the review applicant) seeks review of the delegate’s decision.

3. The review applicant was represented in relation to the review. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. At the time the application was made, 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).

5. 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 was an Australian permanent resident at the time the application was made.

6. ‘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). 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?

7. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The visa applicant provided with his application a copy of the marriage certificate indicating he and the sponsor registered marriage in Vietnam in October 2017. There is nothing to suggest the marriage is not valid. The Tribunal is satisfied on the basis of that  evidence 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?

8. The applicant and sponsor claim to have known each other since 2001 through the operation of the sponsor’s business. After the sponsor’s migration to Australia in 2011 it is claimed the couple did not maintain contact until 2015 when the sponsor visited Vietnam. During the lengthy period of the sponsor’s stay in Vietnam the couple have re-established the connection and they started their relationship in early 2017. They held a marriage ceremony in September 2017 and the marriage was formally registered in October 2017.

9. There was a considerable amount of documentary evidence submitted with the primary application and a substantial amount of additional evidence is before the Tribunal. The Tribunal is mindful that since the primary decision, the sponsor has made a number of additional trips to Vietnam enabling the couple to spend more time together.

10. The Tribunal has considered the financial aspects of the relationship. The delegate noted that the parties provided no supporting evidence regarding their financial aspects of their relationship. The delegate also noted that the applicant stated during the interview that the sponsor sent an amount of VND 85.7 million to the applicant for vehicle repairs and purchase.  In her submissions to the Tribunal the review applicant provided copies of several receipts for money transfers evidencing money sent from the sponsor to the applicant between 2020 and 2022. The total amount exceeds $3500.

11. The Tribunal acknowledges, as did the delegate, that it may be difficult for the applicant and sponsor to establish joint assets and liabilities when they reside in different countries. The Tribunal is of the view that, given their circumstances of geographical isolation, the regular money transfers between the applicant and the sponsor indicate their willingness to share their resources.

12. When making the application, the visa applicant provided evidence of cohabitation in the form of hotel receipt for a short stay in September 2017 and during the interview the visa applicant stated that he lived at the sponsor’s house after that trip, although no evidence of that cohabitation was provided. The delegate expressed concern about the sponsor’s failure to return to see the visa applicant at the time of the primary decision. In her evidence to the Tribunal the review applicant explains that she could not travel to Vietnam between November 2017 and November 2018 because she was planning to apply for Australian citizenship. Evidence before the Tribunal indicates that the review applicant had visited the visa applicant between January and May 2019, August to September 2022 and December 2022 to February 2023. The Tribunal acknowledges that as a result of border closures due to the pandemic, the review applicant would have been unable to travel prior to 2022. The review applicant provided to the Tribunal her temporary resident registration for the January to March 2019 trip, as well as copies of flight tickets, domestic flight tickets and photographs taken during the review applicant’s stays in Vietnam with the visa applicant.

13. The Tribunal is satisfied, having regard to that evidence, that the couple have made an effort to spend as much time together as they could. The Tribunal is satisfied, having regard to the various statements, that during these periods of cohabitation, the applicant and the sponsor have established a joint household and shared the housework.

14. With respect to the social aspects of the relationship, the Tribunal acknowledges the various statements and photographs provided with the primary application. The parties provided to the Tribunal further witness supporting statements from five witnesses who attest that the couple have consistently presented themselves as a loving and committed married couple to their family, friends and acquaintances in Vietnam and Australia and that the couple are in a genuine and continuing relationship. The five witnesses including the sponsor’s daughter in Australia, the sponsor’s daughter in Vietnam, the applicant’s daughter-in-law in Vietnam and two friends of the sponsor. The Tribunal has also been provided with a selection of photographs depicting the couple’s with families, friends and their travels in Vietnam in support of their claimed relationship and the acceptance of their relationship by their families.

15. Having regard to that evidence, the Tribunal is satisfied that the parties represent themselves to other people as being married to each other. The Tribunal is satisfied that their friends and acquaintances believe the relationship to be a genuine and committed one. The Tribunal is satisfied they plan and undertake joint social activities as a married couple.

16. To date, the relationship has been in existence for about six years. The review applicant claims they have maintained frequent contact and supported each other via phone calls during the period when they were living apart. The visa applicant provided with the primary application copies of phone bills relating to periods in 2017 showing incoming calls from Australia.

17. In their statements to the Tribunal, the visa applicant and review applicant set out how their relationship developed and how they draw support from each other. They reiterated that they have always been in a committed and exclusive relationship and are committed to their relationship for the long-term.

18. The review applicant provided to the Tribunal copies of their phone bills and call history from July 2017 to May 2019, and screenshots of video calls via Viber from Dec 2018 to early April 2023 evidencing their frequent communications during their time apart. The Tri has been provided with copies of courier receipts, envelops and letters relating to a period of the last several years showing that the parties’ sending each other gifts and letters during the periods when they were living apart in different countries. The Tribunal is satisfied the applicant and sponsor rely on each other for companionship and emotional support. The Tribunal is satisfied they the relationship as long-term.

19. Having regard to all the circumstances of the relationship, the Tribunal is satisfied the applicant and sponsor have a mutual commitment to shared life to the exclusion of others. the Tribunal is satisfied their relationship is genuine and continuing. The Tribunal is satisfied they do not live separately and apart on a permanent basis. 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 and the time of this decision.

20. Therefore the visa applicant meets cl.309.211 and cl.309.221

    Conclusion

21. 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 309 visa.

    DECISION

22. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.211 of Schedule 2 to the Regulations

    ·cl.309.221 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member