Ho (Migration)

[2023] AATA 405

Ho (Migration) [2023] AATA 405 (28 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Thu Huong Ho

REPRESENTATIVE:  Ms Kelly Tran (MARN: 1801018)

CASE NUMBER:  2203588

HOME AFFAIRS REFERENCE(S):          CLF2014/98418

MEMBER:Antoinette Younes

DATE:28 February 2023

PLACE OF DECISION:  Sydney

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(2)(a) of Schedule 2 to the Regulations

·cl 820.221(1)(a) of Schedule 2 to the Regulations cl 820.

Statement made on 28 February 2023 at 3:29pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Circuit and Family Court remittal – genuine and continuing relationship – financial pooling – shared accommodation with other co-tenants – disapproval by the sponsor’s parents – lengthy cohabitation and commitment – decision under review remitted           

LEGISLATION

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

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 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 14 July 2014 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.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.221.  In essence, the delegate found that, although validly married, the parties did not have a genuine and ongoing spousal relationship.  The delegate concluded that there was insufficient evidence to support a finding that the applicant is the spouse or de facto partner of the sponsor, as defined under section 5F and 5CB of the Act.

4. The matter was before the Tribunal previously (differently constituted) and it was finalised on 6 November 2017.  The applicant sought judicial review and by consent, on 3 March 2022, the matter was remitted to the Tribunal to be determined according to law.

5. The applicant appeared before the Tribunal on 15 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

7. For the following reasons, the Tribunal has concluded that the matter should be remitted.

   Consideration of claims and evidence

8. The issue in the present case is whether the applicant meets cl 820.221(2)(a).

9. By way of background, the applicant lodged a valid application for a Partner (Provisional) (Class UK) (Subclass 820) visa on 14 July 2014 on the grounds of being in a spousal relationship with an Australian citizen, who provided a sponsorship in support of the application. The parties claim to have met in July 2013 at a mutual friend’s birthday party in Glebe. They claim to have committed to a shared life to the exclusion of all others and married on 19 January 2014.

10. The Tribunal has before it the Departmental file and the previous Tribunal file (number 1619724). 

11. At the primary and review stages, the couple provided evidence in support of their relationship.  The documents provided include Statutory Declarations from the parties, Statutory Declarations from witnesses (Forms 888), photographs, greeting cards, joint Medibank card, ANZ joint bank account statements for 5/5/2017-7/11/2017, 5/1/2018-7/9/2018, 7/11/2018-7/1/2019, and 7/3/2019-7/11/2022, sponsor’s Commonwealth and ANZ Bank account statements, PAYG payment summaries, applicant’s Medibank private health insurance statements from 2020 to 2022 showing the sponsor as beneficiary, joint Bond details, joint residential Tenancy Agreement, water and gas bills showing the applicant as a joint account holder, electricity bills, Origin account details, parties’ income tax returns, driver’s licences, and Australian Super letters.

12. The Tribunal observes that there is an inconsistency in the information provided by the parties relating to when they met.  In the visa application forms, the parties declared that they met each other at Town Hall Station on 1 October 2013.  This is inconsistent with their subsequent claims and oral evidence that they met in July 2013.  The Tribunal notes that in the applicant’s signed and witnessed Statutory Declaration dated 5 July 2014, she stated  ‘…On 1 October 2013, I met up with my spouse at Town Hall station in Sydney, and had acquainted with my spouse from this day…’ and ‘…I and Welly Sastra Prawijaya MULYADI started dating each other one week after our first meeting, and we continued our relationship now….’  The sponsor’s signed and witnessed Statutory Declaration dated 5 July 2014 states “…On 1st October 2013, I met up with my spouse  at Town Hall Station in Sydney…’ and ‘…After one week, we got dating each other…”

13. In written submissions to the Tribunal and in oral evidence, the couple stated that they met in July 2013 at a mutual friend’s birthday party in Glebe and started ‘officially dating’ in August 2013.

14. The Tribunal discussed the inconsistency in the information provided.  During the hearing with the previous Member, the applicant gave evidence that she had no idea that the Statutory Declarations and application forms contained false information until she received the delegate’s decision.  She further explained that she had provided both written and oral advice pertaining to the visa application to the former solicitor. She stated that she unfortunately had no written evidence of the advice to her former solicitor. The applicant stated that she went to her former solicitor’s office to end his representation after the refusal, and to obtain all paperwork but none were provided.  She stated that she and her husband had trusted the solicitor.  The sponsor stated that the responsibility for the visa application lay with the applicant and that he had had limited involvement in the preparation of the documentation. He stated to the previous Tribunal that he had never met the solicitor.  Subsequently, he recalled that he had met the solicitor on one occasion.

15.   The Tribunal observes that the applicant voluntarily admitted to the incorrect information in the application and in her written submissions provided to the Tribunal on the day of the previous hearing and during the hearing before the Tribunal.

16.   The Tribunal is of the view that it is clear that the parties had provided inconsistent information about when and where they met, and the Tribunal gives this some adverse weight, but it is the Tribunal’s task to assess the evidence cumulatively and fairly. The Tribunal acknowledges the seriousness of the provision of incorrect information to the Australian authorities.  However, to reach a general adverse credibility finding on that basis would be disproportionate.

Whether the parties are in a spousal or de facto relationship

1. 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.

2. In the present case, the applicant claims to be the spouse of the sponsor who is an Australian citizen.

3. ‘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: ss 5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all 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?

4. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties provided a Marriage Certificate dated 5 March 2014.  There is no issue concerning the validity of the marriage.  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 spousal relationship met?

   ·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.

5. Both the delegate and the previous Tribunal had concerns about the limited evidence concerning this aspect of the relationship.  Since that time, the couple has provided further and recent evidence.

6. In submissions to the Tribunal dated 10 December 2022, the representative noted that at time of the application and delegate’s decision, in relation to the “limited evidence” to demonstrate the financial aspects of the relationship, the couple did not know that living expenses had to be shown in the bank statements to illustrate the significance of their financial relationship. The couple had a long-established habit to use cash to pay for most of their expenses, and only limited transactions went through their bank account such as regular payments by direct debit for joint private health insurance and some online purchases.

7. The Tribunal observes that at the time of the previous hearing in 2017, the couple provided additional joint bank statements up until mid-2017.  Subsequently, they provided statements of their joint bank account from May 2017 to November 2022.  Among other things, the statements show regular deposits between $400 - $500 per month from the sponsor’s personal bank account to the joint bank account since the beginning of the relationship.  In their Statutory Declarations, the couple refers to the sponsor giving the applicant cash on a regular basis.   The statements of the joint bank account also show regular ATM deposits or wages paid to the applicant by her employer(s), demonstrating that the couple has been using their combined financial resources both in cash and in joint bank account to pay rent, bills, groceries, health insurance, etc.

8. The couple has had a joint private health insurance for the past 8 years.

9. The Tribunal acknowledges that at the time of application, there was limited evidence in relation to the financial aspects of the relationship. The Tribunal is, however, mindful of the couple’s circumstances at that time, including date of marriage and limited financial resources. They have since provided substantial evidence, including recent statements for the joint ANZ account showing regular transactions. The Tribunal gives that material weight as evidence of financial aspects of the relationship being consistent with a spousal relationship.

10. On balance, the Tribunal is satisfied that the financial aspects of the relationship are consistent with a spousal relationship.

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

11. In their Statutory Declarations and in oral evidence, the couple described in detail the development of their relationship since they first met in July 2013 at a birthday party of a friend in Glebe, until their wedding on 19 January 2014 and then their married life until the present time. The couple started dating shortly after they met and exchanged numbers at the party. Towards the end of 2013, they discussed marriage and cohabitation.  In December 2013, the applicant moved in with the sponsor at a unit in Hurstville, where the sponsor lived with his brother’s family. They married on 19 January 2014.  Since that time, they have moved on multiple occasions and shared accommodation with others. 

12. The couple provided income tax documents showing that they have declared their addresses and the spousal relationship to the ATO since 2014 until the present time. The couple also provided corroborative evidence that they were living at the same addresses over the past 8 years. 

13. The couple explained that they lived in shared accommodation with other co-tenants since the end of 2013 until early November 2022, therefore, their names were not on lease documents.  The couple has recently moved into a new rental apartment in their joint name. The couple provided a copy of the tenancy agreement and utility account.  Although one might question the recent move into their own apartment as suggesting that this was done to bolster their claims at this review stage, the Tribunal is satisfied that it would be unfair to find that any such concern outweighs other evidence.

14. The evidence before the Tribunal indicates that the couple has been together for about 8 years and has lived as a married couple.  The Tribunal is satisfied that the couple has remained in a loving and committed relationship.

15. The couple gave evidence of their plans to have children, once things have settled, such as the visa issue. 

16. The Tribunal is satisfied that the nature of the household is consistent with a spousal relationship.

    ·Social aspects of the relationship – including whether parties present 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.

17. One of the challenges which the couple faced relates to the sponsor’s parents.  In oral evidence and in writing, the couple referred to the lack of approval of the applicant by the sponsor’s parents, essentially because of the applicant’s different cultural background and the perception that she was not the desired daughter-in-law.  It was submitted that this is the reason for the sponsor’s parents’ absence at the couple’s wedding and at all the major events during the past 8 years.

18. The couple gave extensive evidence that until the present time, the relationship between the sponsor’s parents and the applicant has not improved, which the couple described as a sad part of their marriage, but they hope that when and if they have children, the relationship will improve with the sponsor’s parents.  The issue with the sponsor’s parents is not considered by the parties to be a risk factor in their commitment to the marriage; they acknowledge that this is a sad aspect of their lives which they would like to change but they believe that it does not impact on their love and commitment to one another.

19. The relationship between the applicant and the sponsor’s siblings in Australia is positive.  The couple was living with the family of the sponsor’s brother, from December 2013 to April 2017.  The couple’s marriage is recognised by the applicant’s family in Vietnam as well as the couple’s mutual friends and acquaintances in Australia, as evidenced by, among other things, supporting statements.

20. The couple provided to the Tribunal multiple statements and Statutory Declarations from friends (including Forms 888) that refer to the couple’s commitment to one another.

21. The Tribunal is satisfied that the social aspects of the relationship are consistent with a spousal relationship.

    ·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.

22. As discussed above, the Tribunal is satisfied that the couple has been together and lived as a couple for many years.  During the hearing, the couple referred to their mutual love and support. They have been together for over 8 years, which is highly persuasive evidence of their mutual commitment. They have plans for the future, including having children and resolving the challenges with the sponsor’s parents.

23. The Tribunal is satisfied on the evidence that the couple’s commitment to one another is consistent with a spousal relationship

    ·Any other circumstances of the relationship.

24. There are no other matters requiring consideration.

25. On the evidence, the Tribunal is satisfied that the couple has a mutual commitment to a shared life to the exclusion of others, that the relationship is genuine and continuing, and that the couple lives together.

26. On the basis of the above, the Tribunal is satisfied that the requirements of s 5F(2) were met at the time of the visa application. Therefore, the applicant meets the requirements of cl 820.211(2)(a). Further, on the evidence, the Tribunal is satisfied that the applicant meets cl 820.221(1)(a).

27. 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

28. 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(2)(a) of Schedule 2 to the Regulations

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

    Antoinette Younes
    Deputy President

    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).