Hoang (Migration)

[2021] AATA 4652

Hoang (Migration) [2021] AATA 4652 (17 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Trung Kien Hoang

CASE NUMBER:  1808472

DIBP REFERENCE(S):  CLF2013/172887

MEMBER:Jennifer Cripps Watts

DATE:17 September 2021

PLACE OF DECISION:  Sydney

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

Statement made on 17 September 2021 at 3:58pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – genuine spousal relationship – decision on the papers – request for Ministerial referral declined – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 360
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cl 801.221

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 (the Minister) on 27 March 2018 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 24 July 2013 on the basis of his relationship with his sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by the applicant.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221 because he was found not to be the spouse or de facto partner of the sponsoring partner.

4. The applicant was represented by his appointed solicitor.  The Tribunal corresponded with the applicant’s representative and authorised recipient.

5. Under s.360 of the Act, the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the decision under review.  An exception is where the applicant consents to the Tribunal deciding the review without them appearing.

6. On 1 June 2021, the Tribunal sent the applicant an invitation to attended a scheduled hearing.  An email response was received on 17 June 2021, confirming that the applicant would not be attending the hearing and nor would his representative.  The Tribunal was informed in the response that they would be providing written submissions and that the applicant consented to a decision being made ‘on the papers without taking further steps to allow him to appear.’

7. Accordingly, no hearing was held in this matter and the Tribunal has proceeded to make a decision on the evidence before it..

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant is the spouse or de facto partner of the ‘sponsoring partner’, to meet cl.801.221 of Schedule 2 of the Regulations.

   Brief Background

10. Trung Kien Hoang and Tina Truong (the parties) applied onshore for a partner visa, on the basis of their marriage and claim to be in a spouse relationship, on 24 July 2013.  The subclass 820 temporary visa was granted.  On 1 November 2017, the sponsor withdrew her sponsorship and the applicant was informed in writing a few days later.  There was some communication between the Department and the applicant’s migration agent.  However, it appears that little, if any, information relating directly to this adverse matter was provided by the applicant.  On 27 March 2018, the applicant’s subclass 801 permanent visa was refused.  He did not meet cl.801.221 because the Minister was not satisfied he was the spouse or de facto partner of the sponsoring partner.  Since lodging the review application for refusal of the visa in March 2018, he has resided onshore as the holder of a bridging visa related to his review application.

11. The applicant claims to now be in a relationship with Tu Anh Tran.  It has been submitted that Ms Tran applied for a subclass 186 employer nomination permanent visa on 4 November 2020 and that they are hopeful that the visa will soon be granted.  The applicant has provided a birth certificate, indicating that he and Ms Tran are the parents of a child born in Australia in January 2021.   

12. Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’.  Essentially, the relationship must be ‘genuine and continuing’.  The applicant has informed the Tribunal, in writing, that he is no longer in a spouse relationship with the sponsor. 

13. ‘Spouse’ is defined in s.5F of the Act and requires, in summary, that the parties meet each of the requirements of s.5F(2)(a)-(d):

    ·are legally married

    ·have a mutual commitment to a shared life as a married couple to the exclusion of all others

    ·Are in a genuine and continuing relationship

    ·That they live together, or not live separately and apart on a permanent basis

14. The Tribunal has been informed that the sponsor has commenced divorce proceedings in the Family Court in November 2020.  The applicant makes no claim to continue to be in a spouse relationship with the sponsor.  He has provided evidence in which it is unequivocally stated that this is the case and that he is in a relationship with someone else.

15. Written submissions from the applicant’s representative and statutory declarations from the applicant and Ms Tran have been provided to the Tribunal.  The information in them has been considered.  It appears that the applicant may meet s.5F(2)(a) at the time of this decision.  However, he does not meet s.5F(2)(b), (c) and (d).

16. Given these findings the Tribunal is not satisfied that all the requirements of s.5F(2) are met at the time of this decision and therefore the applicant does not meet cl.801.221(2)(c) of Schedule 2 to the Regulations.

17. Furthermore, the applicant has not claimed, and there is no evidence before the Tribunal, that the applicant meets the alternative criteria in cl.801.221(2A), (3), (4), (5) or (6).

    Request for referral to the Minister

18. The Tribunal acknowledges that a request was made by the applicant, in writing on 17 June 2021, to refer their matter to the Minister.

19. Under the Ministerial guidelines, the Tribunal may refer a case to the Department if the Tribunal member believes there are issues involved that fall within the unique or exceptional circumstances described in section 4 of the Ministerial guidelines. The Tribunal has carefully considered the submissions and evidence but has decided not to make a specific recommendation of referral.  As there will be an appropriate existing decision in the applicant’s case from the Administrative Appeals Tribunal (Migration and Refugee Division), the applicant will be able to make a direct request to the Department for Ministerial intervention, and have the request assessed against the Ministerial guidelines, if he chooses to do so.

    Conclusion

20. For the reasons given in this decision, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

21. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

    Jennifer Cripps Watts
    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).