Hoang (Migration)

[2021] AATA 2853

Hoang (Migration) [2021] AATA 2853 (4 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Thi Trang Dung Hoang
Mr Minh Duc Ngo
Mr Duc Phong Ngo

CASE NUMBER:  1810550

HOME AFFAIRS REFERENCE(S):          BCC2017/1106952

MEMBER:Hugh Sanderson

DATE:4 August 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl 820.211(2) of Schedule 2 to the Regulations; and

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

Statement made on 04 August 2021 at 4:28pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – genuine and continuing relationship – validly married – detailed and consistent evidence of financial, household and social aspects of relationship and nature of commitment – extended family life, companionship, emotional support and future plans – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulation 1994 (Cth), Schedule 2, cls 820.211(2), 820.221(1)

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 Home Affairs to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant (the applicant) applied for the visa on 21 March 2017 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 visa applicant did not satisfy cl 820.211(2) because the delegate was not satisfied the applicant was the spouse, as defined in s.5F of the Act, of the sponsoring partner.

   Background

4. The applicant is a citizen of Vietnam and is currently 46 years old. She was previously married and divorced her husband on 18 October 2016. There are two children of that relationship who are the second named visa applicants. They are currently 23 and 17 years old. Minh first entered Australia on a Student visa on 11 June 2016 and has resided primarily since then. He has only departed Australia once since then, leaving on 19 January 2020 and returning on 31 January 2020.

5. The movement records of the applicant show that she has travelled to Australia on Visitor visas on the following occasions:

   ·From 11 June 2016 to 20 June 2016;

   ·From 2 October 2016 to 16 October 2016;

   ·From 26 November 2016 to 29 December 2016; and

   ·From 6 March 2017.

6. The sponsor of the applicant is Ba Nhan Nguyen. He became an Australian citizen on 21 August 2019. He was born in Vietnam and is currently 52 years old. His father and a sister remain living in Vietnam. His mother and a brother were living in the Czech Republic at the time of the application. His mother died in 2020. He has been married on two previous occasions. His first wife sponsored him for a Partner visa in 2004. He was granted a Subclass 100 Partner (Residence) visa in 2007. He divorced his wife on 21 May 2009. He then remarried on 1 March 2010 and sponsored his wife for a Partner visa which was granted to her in 2012. There is one child of that relationship, a daughter Hoang Bao Nhi Nguyen, who is 10 years old. The sponsor divorced his second wife on 18 October 2016.

7. The parties claimed they first met each other in Cabramatta on 11 June 2016 when the applicant was visiting her son in Australia and they attended a party held by a mutual friend. When the applicant returned to Australia in October 2016 their relationship developed. When she returned to Vietnam after that visit they continued to communicate with each other over the phone. When the applicant returned to Australia in December 2016 she introduced the sponsor to her son. On 25 December 2016 the sponsor proposed marriage to the applicant and she accepted. The parties were married on 8 March 2017.

8. The applicant, since applying for the Partner visa, has travelled out of Australia over the following periods:

   ·From 8 July 2018 to 18 July 2018; and

   ·From 2 March 2019 to 11 March 2019.

9. Since meeting the applicant in 2016, the sponsor has travelled out of Australia as follows:

   ·From 25 March 2017 to 1 April 2017;

   ·From 9 July 2017 to 28 July 2017;

   ·From 20 November 2017 to 27 November 2017;

   ·From 8 July 2018 to 18 July 2018 (travelling with the applicant and her youngest child);

   ·From 2 March 2019 to 11 March 2019 (travelling with the applicant); and

   ·From 28 April 2019 to 11 May 2019.

10. The applicant provided various documents in support of the application. This included the following:

    ·Statements by the applicant and the sponsor;

    ·Statements by an employee of the sponsor and a friend of the applicant;

    ·Joint bank account details;

    ·Photos of the parties together at various social events;

    ·Utility accounts and other documents sent to the parties; and

    ·Shared residence details.

11. The parties were interviewed by an officer from the Department.

12. The delegate who consider the application noted the following issues:

    ·There was little information as to the financial aspects of the relationship with the joint bank account opened by the parties showing no pooling of financial resources or shared day-to-day expenses;

    ·There was little evidence of the parties having established a household together;

    ·There is no information which would indicate the sponsor’s family in Vietnam are aware of his marriage to the applicant;

    ·When interviewed, the applicant provided only a superficial knowledge of the sponsor and indicated that she had never met any members of his family;

    ·As the applicant only divorced her husband shortly before claiming to have started her relationship with the sponsor, it appeared that the relationship had been arranged for immigration purposes only; and

    ·There was little information indicating any commitment to a relationship.

13. Taking into account these matters, the delegate was not satisfied that the applicant was the spouse, as defined in s.5F of the Act, of the sponsoring partner. The delegate found the applicant did not meet the criteria in cl.820.211(2) and refused the application. As the applicant did not meet the primary criteria for the grant of the visa, the second named applicants were not members of the family unit of the person who met the primary criteria and therefore their applications were refused.

    Information to the Tribunal

14. The applicant provided further information to the Tribunal including the following:

    ·Statements by the parties in support of the application;

    ·Statements by various friends and relatives stating that they believed the relationship is genuine;

    ·Bank statements showing the parties financial arrangements;

    ·Correspondence from Centrelink;

    ·Joint residential tenancy agreements;

    ·Correspondence addressed to the parties at the various homes they have resided together; and

    ·Numerous photos of the parties together at various social events, including at their wedding in Australia and at the wedding ceremony they held in Vietnam.

15. The applicants appeared before the Tribunal by MS Teams video on 4 August 2021 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. The applicants were represented in relation to the review by their registered migration agent who attended the meeting.

16. The parties provided consistent information as to various aspects of their relationship. This included where they were living and the arrangements within their home, their work, details as to their children’s lives, the travel and other social activities they have participated in, and their plans for their future. The parties gave their evidence in a frank and forthright manner.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The issue in the present case is whether the applicant is the spouse, as defined in s.5F of the Act, of the sponsoring partner.

    Whether the parties are in a spouse or de facto relationship

19. 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.

20. ‘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?

21. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties were married on 8 March 2017. There is nothing to indicate the marriage between the parties 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?

    Financial aspects

22. Neither the applicant nor the sponsor has any significant assets of their own and it is not surprising, therefore, that they do not jointly own any significant assets. The parties have entered into various residential tenancy agreements in their joint names and have a joint bank account. They provided consistent information as to their financial affairs showing a knowledge of each other’s individual financial situation and providing consistent information as to the shared plans for their financial future and future investments.

23. The parties bank statements and information provided during the hearing shows that the parties are pooling their financial resources and sharing the day-to-day household expenses. The applicant was able to provide details of the sponsor’s work, including for his own business, and the financial arrangements he has. The primary income earner for the family is the sponsor with the applicant only working three days a week when able to.

24. Although the parties do not have any significant assets or liabilities, the knowledge the parties displayed of each other’s financial situation and their joint plans for their financial future supports a finding that the financial aspects of the relationship is consistent with the parties living together in a genuine and continuing relationship with a mutual commitment to a shared life as husband and wife to the exclusion of all others.

    Household

25. The parties provided consistent information as to where they have been living throughout the course of their relationship. They provided consistent information as to the arrangements within their household, including the renting of one of the rooms in the home in which they currently live to an overseas student and the arrangements with that student. The applicant has provided copies of the joint residential tenancy agreements she has entered into with the sponsor. Correspondence addressed to both parties has been provided showing that they have been living together over the course of their claimed relationship.

26. The parties provided consistent information as to the arrangements for the applicant’s children who live with the applicant and the sponsor. This included details of their schooling and their normal living arrangements. The information provided by the parties is consistent with their sharing of the care and support of the applicant’s children and the arrangements within their shared household as indicating they are living together in a genuine and continuing relationship with a mutual commitment to a shared life as husband and wife to the exclusion of all others.

    Social aspects

27. The parties participated in a marriage ceremony in Australia with friends attending. They participated in a further marriage ceremony in Vietnam with the sponsor’s sister and members of the applicant’s family attending. Numerous photos have been provided of the parties together at various social events supporting a finding that the parties represent themselves as being married to each other. The applicant accompanied the sponsor on one of his business trips to China as his wife to attend various social functions during that trip.

28. The applicant provided statements from friends and relatives stating that they consider that the parties are living in a genuine and continuing relationship. They confirm the various social activities the parties have participated in as a married couple and that they represent themselves as being married to each other.

29. The Tribunal finds the social aspects of the relationship are indicative of the parties living together in a genuine and continuing relationship with a mutual commitment to a shared life as husband and wife to the exclusion of all others.

    Commitment to each other

30. The parties first met each other in June 2016. At that time, the relationships both parties had been in had come to an end. The sponsor proposed marriage to the applicant in December 2016 and she agreed. They were married in March 2017. They have now been married for more than four years.

31. The parties provided details of each other’s personal lives and factors that have affected them. This included the fact that the sponsor had little or no relationship with his father after he left their family to become a monk when the sponsor was young. It included the fact that the sponsor’s mother died of Covid complications in 2020. The applicant was able to provide details of the sponsor’s daughter’s relationship with him and her mother. The sponsor was able to provide details of the sponsor’s sons’ relationship with their father. The information provided by the applicant and the sponsor indicates they provide each other the degree of companionship and emotional support which would be expected in a genuine relationship.

32. The parties provided consistent information as to their future plans together. This included what work the parties would hope to be able to participate in, their savings goals and their plans purchase a home together. They provided consistent information as to whether they wanted to have any children together. The information they provided indicated the parties consider their relationship as long term.

33. Overall, the Tribunal finds that the degree of commitment the parties show to each other is indicative of their living together in a genuine and continuing relationship with a mutual commitment to a shared life as husband and wife to the exclusion of all others.

    Overall assessment

34. The Tribunal has considered the application both individually and cumulatively. The Tribunal is satisfied that the weight of evidence supports a finding that the parties are living together in a genuine and continuing relationship with a mutual commitment to a shared life as husband and wife to the exclusion of all others. They have now been living together, with the applicant’s children, for over four years. They have provided a high degree of emotional support to each other. They have presented their relationship to their families, including conducting the wedding celebration in Vietnam, and their respective families have welcomed them both into their extended family life.

35. 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 at the time of this decision. Therefore, the applicant meets cl 820.211(2)(a).

36. At the time of the application, the applicant was sponsored by the sponsoring partner and continues to be sponsored by him. Therefore, the applicant meets cl 820.211(2)(c). At the time of the application, the applicant held a substantive visa and therefore the criteria in cl 820.211(2)(d) is not relevant. Accordingly, the applicant meets the criteria in cl 820.211(2).

37. As the applicant continues to meet the criteria in cl 820.211(2) at the time of this decision, the applicant meets the criteria in cl.820.221(1).

38. 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.

39. As the visa applicant meets these criteria for the grant of the visa, the applications of the second named visa applicants as members of the family unit of the person who meets the primary criteria should now be reconsidered in full.

    DECISION

40. The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·cl 820.211(2) of Schedule 2 to the Regulations; and

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

    Hugh Sanderson
    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).