HOANG (Migration)

[2020] AATA 2156

HOANG (Migration) [2020] AATA 2156 (23 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Duoc Manh HOANG

VISA APPLICANT:  Mrs Thi Phuong Thao HA

CASE NUMBER:  1905259

DIBP REFERENCE(S):  BCC2017/2116757

MEMBER:Steven Griffiths

DATE:23 January 2020

PLACE OF DECISION:  Adelaide

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 (Spouse (Provisional)) visa:

·cl.309.211of Schedule 2 to the Regulations

·cl.309.221 of Schedule 2 to the Regulations

·r.2.03A

Statement made on 23 January 2020 at 10:33am

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – de facto partner – financial, household and social aspects of relationship – nature of commitment – sponsor’s extensive visits to applicant – unregistered wedding ceremony in home country – intention to validly marry in Australia – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5CB, 65

Migration Regulations 1994 (Cth), rr 1.09A, 2.03A, Schedule 2, cls 309.211, 309.221

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 Immigration on 13 February 2019 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, Mrs. Thi Phuong Thao Ha, applied for the visa on 15 June 2017 on the basis of her relationship with her sponsor, Mr. Duoc Manh Hoang, the review applicant. At that time, 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). The primary criteria must be satisfied by at least one applicant.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211(2) because the delegate was not satisfied the applicant was the de facto partner, as defined in s.5CB of the Act, of the sponsor.  

4. The sponsor appeared before the Tribunal on 22 January 2020 to give evidence, respond to questions and present arguments. The Tribunal also received oral evidence from the visa applicant, by telephone, and the son of the visa applicant. The hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.  

5. The sponsor was represented by his registered migration agent, who attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal has taken into consideration all the evidence in the Department of Immigration file, the Tribunal file including additional information provided by the applicants and the evidence from the Tribunal hearing.

   ISSUE

8. The issue in the present case is whether the applicant is the de facto partner, as defined in s.5CB of the Act, of the sponsor.

   BACKGOUND OF THE EVIDENCE

9. Mrs. Ha was born in Ho Chi Minh City, Vietnam, in 1969. Her mother is deceased, with her father, born 1939, and she has 3 brothers and 3 sisters, born between 1961 & 1971, all living in Vietnam. She was married from 1989 to 2010 and has 2 sons, born 1989 & 1995, with one living in Australia.  

10. Mr. Hoang was born in Vietnam in 1958. His parents are deceased, and he has 5 sisters, born between 1946 and 1960, all living in Vietnam. He arrived in Australia on 8 August 1980 and became an Australian citizen by grant on 23 August 1983. He was married from 1993 to 2002, and has a daughter, born 1995, who has lived in the United States of America since 2000 with her mother.

    BACKGROUND OF THE EVIDENCE

11. Since the Department made a decision the sponsor has provided further information to the Tribunal including:-

    Statutory Declaration by sponsor dated 19/6/17

    Form 888 Statement by Hieu Trung Hoang Nguyen, sponsor great nephew, dated 16/6/17

    Money Transfers – 30/8/10 $ 500, 11/10/10 $ 500, 15/12/10 $ 300, 4/3/11 $ 300, 1/5/11 $300, 7/9/11 $ 300, 29/9/11 $ 300, 18/4/13 $ 1000, 26/4/13 $ 900, 2/7/13 $ 500, 8/8/13 $900, 4/9/13 $1500, 2/11/13 $ 300, 3/6/14 $200, 23/7/14 $ 600, 14/8/14 $ 1000, 20/11/14 $200, 11/12/14 $350, 17/12/14 $490, 11/2/15 $ 3500, 23/2/15 $ 700, 12/3/15 $ 300, 16/10/15 $ 2200, 2/12/15 $ 9900, 13/1/16 $ 2000, 1/2/16 $ 2900, 28/4/16 $ 200, 7/7/16 $119.65, 10/10/16 $ 700, 24/1/17 $ 703.80, 24/5/17 $ 1000 – total of $ 34,663.45 between 30/8/10 & 24/5/17

    Workers Compensation matters, dated 27/11/15

    103 photos of couple with family and friends in Australia and Vietnam

    Migration Agent statement, dated 20/1/20

    Statutory Declaration by sponsor, dated 14/1/20

    Form 888 Statement Phu Vinh Kieu, son of applicant, dated 15/1/20

    Sponsor medical treatment records, dated 6/3/19

    Money Transfers – 1/4/19 $ 600, 1/7/19 $ 200, 22/11/19 $ 1000, 8/1/20 $ 800, 17/1/20 $ 500 – total of $ 3100

    Is the sponsor an Australia citizen, an Australia permanent resident or an eligible New Zealand citizen?

12. Clauses 309.211(2) and 309.221 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. The Tribunal accepts the documented evidence of the sponsor becoming an Australian citizen by grant on 23 August 1983.   

    Are the parties in a de facto relationship?

13. 'De facto partner' is defined in 5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2).

14. In forming an opinion whether they are in a de facto relationship consideration must be given 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.1.09A(3) which is attached to this decision. Each of the specific matters contained in r.1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    CLAIMS AND FINDINGS

    Financial aspects of the relationship that must be considered include:-

    (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 expense

15. The Tribunal determines from the oral evidence of the parties that at the time of the visa application and this decision, no real estate was or is jointly owned by the parties.  

16. The Tribunal determines from the documented and oral evidence of the parties that at the time of the visa application and this decision, the parties do not have any joint liabilities.

17. The Tribunal determines from the oral evidence of the parties that at the time of the visa application and this decision, none of the parties has a legal obligation with regard to the other.

18. The Tribunal notes the oral evidence of the applicant that she has not been in paid employment during the time of the relationship with the sponsor.

19. The Tribunal notes the oral evidence of the sponsor working in the door and window manufacturing industry until 2014 when he suffered a serious work place injury and that he has not worked since.    

20. The Tribunal notes the documented and oral evidence of the sponsor receiving a lump sum payment, in late 2015, for his workplace injuries and significant amounts of these proceeds being transferred to the applicant.

21. The Tribunal accepts the oral evidence of the parties, confirmed independently, of previously holding a joint bank account in Vietnam, with this account not being used for approximately 7 years and no longer active.

22. The Tribunal accepts the documented and oral evidence, confirmed independently, of the sponsor making money transfers between 30/8/10 and 17/1/20 totalling $ 37,763.45 to the sponsor, with these funds used to support the daily needs of the visa applicant, for the use of the parties in the times of the sponsor being in Vietnam living with the applicant, and by being invested and saved by the applicant for the future use of the parties when they are permanently living together in Australia, and determines, at the time of the visa application and this decision, these actions to confirm the pooling of financial resources in relation to major financial assistance and the sharing of day-to-day household expenses.   

23. The Tribunal accepts the documented and oral evidence of the parties, confirmed independently, of the sponsor contributing the majority of household costs incurred for the 7 times he has been to Vietnam, totalling approximately 945 days, staying with the applicant and her family each time other than when the parties have been at holiday locations, since the relationship began and determines, at the time of application and this decision, these examples of financial support confirms the pooling of financial resources in relation to major financial commitments and the sharing of day-to-day costs when together.  

    Nature of the household aspects that must be considered include:-

    (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

24. The Tribunal accepts the documented and oral evidence from the parties of the sponsor having an adult daughter, who has lived in the United States of America since 2000, with the sponsor being in contact with his daughter weekly and aware of the relationship between the sponsor and visa applicant. The Tribunal notes the parties have no joint responsibility for the care and support of now 25 year old daughter.  

25. The Tribunal accepts the documented and oral evidence, confirmed independently, of the applicant having 2 adult sons, born in 1989 and 1995, with the eldest living in Australia and providing oral evidence to the hearing on his support for the parties. The Tribunal notes the sponsor has a close relationship with the adult children of the applicant, and determines, at the time of the visa application and this decision, the parties have joint responsibility as parents would for the care and support of adult children.  

26. The Tribunal accepts the oral evidence of the parties, confirmed independently, of the applicant living in a joint home with her parents, some of her sibling siblings and their children, with the sponsor living with the applicant and family during each of the 7 visits, totalling approximately 945 days, he has made to Vietnam to be with the applicant.

27. The Tribunal accepts the oral evidence of the parties, confirmed independently, of the applicant visiting Australia for 41 days December 2010 and January 2011 to spend time with the sponsor and one of her brothers living in Australia and a friend of the sponsor.    

28. The Tribunal accepts the oral evidence of the parties, confirmed independently, of the approximately 945 days the sponsor has lived in Vietnam with the sponsor and determines, at the time of the visa application and this decision, of the parties, when living together, sharing the responsibility for housework.  

    Social aspects of the relationship that must be considered include:-

    (i)whether the persons represent themselves to other people as being a de facto partner 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

29. The Tribunal accepts the photographic, documented and oral evidence and determines, at the time of application and this decision, the parties represent themselves to other people as being de facto partners.  

30. The Tribunal accepts the documented, photographic and oral evidence of family and friends of the parties and determines, at the time of application and this decision, the opinion of family, friends and acquaintances as being supportive of the de facto relationship. 

31. The Tribunal accepts the documented and oral evidence of the contact between the parties when apart, and determines, at the time of application and this decision, the parties have a high level of knowledge of what the other does.

32. The Tribunal accepts the photographic, documented and oral evidence, confirmed by the parties independently, of their time together and determines at the time of application and this decision, the parties plan and undertake joint social activities.

    Nature of the commitment to each other that must be considered include:-

    (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.

33. The Tribunal accepts the evidence of the parties making contact in July 2010 in Vietnam, talking constantly with the applicant then visiting the sponsor in Australia in December 2010, committing to each other as de facto partners in November 2011 and holding a wedding ceremony in Vietnam in December 2012, attended by 50 family and friends, noting this ceremony was never registered and the parties are recognised officially as de facto partners.        

34. The Tribunal accepts the photographic, documented and oral evidence that the parties have lived together for approximately 986 days since first meeting in July 2010.

35. The Tribunal accepts the documented and oral evidence of the parties of the issues they have dealt with and the support provided to each other in getting through these issues and determines, at the time of application and this decision, a high level of companionship and emotional support is provided by each of the parties.

36. The Tribunal accepts the oral evidence of the parties, confirmed independently, of an Australian marriage ceremony to be one of their first priorities if the applicant is allowed to live in Australia.   

37. The Tribunal accepts the oral evidence of the parties and determines, at the time of application and this decision, they have had and continue to have an ongoing commitment to each other and see the relationship, de facto partnership and future marriage as being for the long-term.

    Whether the parties are related by family

38. The Tribunal determines that the parties are not related by family. 

39. The Tribunal considered all the evidence on the circumstances of the parties and determines that the evidence supports a finding that, at the time of the application and this decision, the parties have had and continue to have a mutual commitment to a shared life together as a de facto couple to the exclusion of all others, with the relationship genuine and continuing and that they have spent as much time together as finances and work responsibilities have allowed.

40. The Tribunal accepts that the parties have been in a committed relationship since late 2010 do not live separately and apart of a permanent basis. 

41. On the basis of the above the Tribunal is satisfied that the requirements of s.5CB(2) are met at the time of the visa application and the time of this decision. The Tribunal is further satisfied the sponsor is not prohibited by subclause (2B) from being a sponsoring partner.

42. Therefore, the visa applicant meets cl.309.211 and cl.309.221.

    Are the additional criteria for a de facto relationship met?

43. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in r.2.03A. Both members of the couple must be at least 18 years old: r.2.03A(2). In this case, at the time of application, the applicant and the sponsor were at least 18 years old.

44. The applicant must have been in the de facto relationship for at least the 12 month period ending immediately before the date of the application: r.2.03A(3). This requirement will not apply in limited circumstances, such as: where the de facto relationship has been registered under a relevant State or Territory law (for applications made on or after 9 November 2009); where the applicant can establish compelling and compassionate circumstances for the grant of the visa; or in certain circumstances where the sponsor held, holds or is applying for a permanent humanitarian visa.

45. There is no evidence that the relationship is registered under a relevant State or Territory law or that the sponsor held, holds or is applying for a permanent humanitarian visa, so they must meet the 12 month requirement. The Tribunal finds the parties have been in a relationship since late 2010. Accordingly, the Tribunal is satisfied that the applicant had been in the de facto relationship for at least the 12 month period ending immediately before the date of the application.

46. For these reasons the Tribunal is satisfied that the applicant meets the additional criteria prescribed in r.2.03A.

47. 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

48. 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

    ·r.2.03A

    Steven Griffiths
    Member

    
    

    ATTACHMENT  -  Extract from Migration Regulations 1994

    1.09ADe facto partner and de facto relationship

    (1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.

    Note 1   See regulation 2.03A for the prescribed criteria applicable to de facto partners.

    Note 2   The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.

    Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).