Huynh (Migration)

[2021] AATA 4271

Huynh (Migration) [2021] AATA 4271 (3 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Thi Xuan Trang Huynh

CASE NUMBER:  1801072

DIBP REFERENCE(S):  CLF2011/206772
CLF2013/181429

MEMBER:David Crawshay

DATE:3 November 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl.801.221(2)(b), cl.801.221(2)(c) and cl.801.221(2)(d) of Schedule 2 to the Regulations

Statement made on 03 November 2021 at 3:49pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – genuine and continuing relationship – validly married – financial, household and social aspect of relationship – nature of commitment – documentary and oral evidence and supporting statements – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cl 801.221(2)(b), (c), (d)

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 10 January 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 2 August 2013 on the basis of her relationship with her 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 at least one applicant.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221 because the delegate was not satisfied that she was the spouse of the sponsor at the time of decision.

4. The applicant appeared before the Tribunal on 27 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The hearing was conducted with assistance from an interpreter in the Vietnamese and English languages.

5. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. On the evidence before it, the Tribunal is satisfied that the sponsor is the “sponsoring partner” of the applicant who is an Australian citizen and that sponsorship continues, and that at least two years have passed since the application was made. Therefore, the applicant meets cl.801.221(2)(b) and cl.801.221(2)(d).

8. The issue in the present case is whether the applicant is the spouse of the sponsor at the time of this decision under cl.801.221(2)(c).

   Whether the parties are in a spouse or de facto relationship

9. 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”, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the “sponsoring partner” of the applicant.

10. “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, including the matters set out in r.1.15A(3), which is extracted in the attachment to this decision.

    Are the parties validly married?

11. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal has sighted a copy of a certificate for a marriage that took place on 5 September 2011. It accepts that the document is genuine and that the parties were free to marry each other. 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 of the relationship

12. The Tribunal heard from the applicant that the mortgage on their property was paid off in 2017. She said that she contributed to these repayments by paying for shared life expenses such as shopping and house items. She said that the parties had been looking for other houses but had been unable to obtain finance for them. She said that they ultimately decided to renovate their current address to turn it into a two-storey house. She said that they had lodged a permit application with the council in 2019 and had not heard back. She said that the permit was to knock the house down to rebuild. The sponsor spoke to substantially the same details.

13. The Tribunal showed the applicant a copy of the planning register for Brimbank City Council showing that the planning permit application was, in fact, lodged in April 2021 and not 2019, and this information was put to her. She replied that the sponsor paid a company to organise the permit for them and she thought that they did this in 2019. She said that they spoke to the company about building a new house because their old house was in a dilapidated condition.

14. In terms of a car, she told the Tribunal that they have one car that she owns. She said that she drives the sponsor to work on Mondays and Wednesdays and he rides to work or is picked up on the other days. She said that they have no joint assets. The Tribunal notes that there are some receipts for purchases made. It was able to cross-reference one of these purchases with statements from the parties’ joint bank account (an iPad and Airpods from the Apple Store). It was not able to ascertain whether the other purchases were paid for using the joint account or by money jointly contributed.

15. The applicant said that the parties do not have any joint liabilities.

16. In relation to the extent of any pooling of financial resources, the applicant told the Tribunal that the parties have a joint bank account into which she deposits her salary and that the sponsor has a personal bank account into which his salary is deposited. She said that the sponsor also gives her $500-a-month for her to use, which is either transferred into the joint account or given in cash. The Tribunal has seen statements for a joint bank account and an account in the name of the sponsor and these statements broadly substantiate the applicant’s claims. In relation to the claim that the sponsor transfers $500-a-month, the Tribunal notes that while some transfers from the sponsor’s account into the joint account are made and it would sometimes seem that she is receiving more than $500-a-month, these payments are not regularly but are irregular. It is not otherwise able to substantiate the claim of the sponsor giving her other money in cash.

17. The Tribunal was not able to uncover any evidence of the parties owing any legal obligations in respect of the other person. The applicant at hearing told it that they have not drawn up wills. She said that she has made a superannuation nomination in favour of the sponsor as well as her parents but upon further questioning said that this nomination had not yet been made. The Tribunal notes a statement from her superannuation company showing that, as at 31 December 2020, no nomination had been made.

18. In relation to the sharing of day-to-day household expenses, the applicant told the Tribunal that the sponsor pays for the larger items of spending whereas she pays for smaller things such as the shopping and household items.

19. Based on the above evidence, the Tribunal makes the following findings. It finds that the parties do not jointly own any real estate but may own other smaller assets. It gives this evidence limited weight. It finds that they do not have any joint liabilities and gives this evidence no weight. It finds that the sponsor provides some money to the joint account which is referred to in the statements as being for food and bills, whereas the rest of the money is provided by the applicant through her weekly salary payments. It finds that this account is used to pay for things such as groceries, some smaller utility bills such as mobile, car finance (although this car is owned by the applicant), and other discretionary purposes, and accepts that it is used in a manner that is consistent with the parties being in a spousal relationship. This evidence is given weight. It accepts that the sponsor, as owner of the property, would pay for other costs such as the other utility bills and gives this some weight. It accepts the applicant’s characterisation of the parties’ sharing of day-to-day household expenses. Finally, the Tribunal finds that the parties do not owe each other any legal obligations and gives this no weight.

20. The Tribunal accepts that the evidence of the financial aspects of the parties’ relationship points to them being in a genuine and continuing relationship.

    Nature of the parties’ household

21. The parties have no children of the relationship, although the sponsor has a child with his ex-spouse. When asked how the applicant cares and supports this child, the applicant said that she picks up this child from the sponsor’s ex-spouse. She said that she buys things for the child or gives her money to do so. The sponsor answered in substantially similar terms.

22. The applicant submitted numerous pieces of correspondence addressed to one or both of the parties at an address in Sunshine. These pieces of correspondence are from utility companies, government agencies, their bank, the applicant’s superannuation provider and other entities, and they comprise a period that finishes recently. It accepts based on the preponderance of this correspondence and the fact that she has represented her address to entities such as the ATO and VicRoads that she has been living and still lives at the Sunshine address with the sponsor. The parties were also able to give consistent answers to questions about their sleeping habits that would suggest that they cohabitate.

23. In relation to the sharing of responsibility for housework, the applicant said that the parties help each other. She said that she goes to buy food after work and prepares food for him, and he cleans and washes after dinner. She said that on the weekend, she cleans and tidies the house whereas he helps with the heavy work and repairs. Both parties were able to state the day of the week when the bins were collected.

24. The Tribunal makes the following findings based on this evidence. It accepts that the parties do not have any children-in-common and gives this no weight. It finds that the applicant has a small role in caring for and supporting the sponsor’s child to his ex-spouse, and this evidence is given little weight as a result. It accepts that the parties have been living under the same roof and currently do so. It accepts that they each share in the housework.

25. The Tribunal finds that the evidence in relation to the nature of the parties’ household indicates that they are in a genuine and continuing relationship and that they live together at the time of this decision.

    Social aspects of the relationship

26. The Tribunal has seen evidence in the form of several Form 888 statutory and other declarations. Several of these are from people who describe themselves as friends of the parties. Most state that they have known the parties for almost a decade if not more. One of the declarations is from Ms Janine Hunt, who is the owner of the “Chicken Pantry” where the applicant works. In her declaration, Ms Hunt described how the applicant opened up to her about being in a married relationship with the sponsor and how applicant took the sponsor to a work party.

27. The Tribunal notes that the applicant has represented herself to several government and commercial entities as being in a married relationship with the sponsor. This includes the ATO by nominating the sponsor as her husband and their private healthcare provider by having couples’ insurance. The Tribunal also notes that the sponsor is included as a noted driver on the applicant’s car insurance.

28. Photographs of the parties show them in the presence of other people. Although it is difficult to know when most of these photographs were taken, the Tribunal notes that some were taken at the sponsor’s 40^th birthday party in 2019 and during a holiday to Hobart in December 2018. It particularly notes that the sponsor’s 40^th birthday party was attended by members of his family. The Tribunal accepts that the pandemic of 2020-2021 has meant that socialising has proved harder (along with the anti-social hours that the parties work during most of the week). In that regard, while there are annotated photographs of the parties together during this period, no other parties are observed.

29. Finally, the Tribunal accepts evidence in the form of boarding passes, booking itineraries and photographs that shows the parties undertaking some joint social activities, including the aforementioned holiday to Hobart as well as a holiday to Vietnam in early-2018. It notes that the holiday to Hobart was taken as a group with two of their friends. In relation to the holiday to Vietnam in 2018, the parties gave consistent evidence about what they did during the time that they were there.

30. Having considered the above evidence, the Tribunal makes the following findings. It finds that the parties have represented themselves to several people, comprising their friends, the applicant’s work colleagues and some members of the sponsor’s family, as being in a married relationship with each other and that these people regard them as such. The Tribunal finds that the parties have undertaken some joint social activities such as by going on holidays.

31. The Tribunal accepts that the evidence of the social aspects of the relationship leans towards the parties being in a genuine and continuing relationship at the time of decision.

    Nature of the parties’ commitment to each other

32. The Tribunal accepts as above that the parties have been married since September 2011. Based on the consistent evidence given by the parties over a number of documents and forums, culminating with their testimony at hearing, it also accepts that they met in 2010 through a couple known as Tam and Mai – Tam being the applicant’s cousin and Mai being a friend of the sponsor. It accepts based on the evidence including the consistent testimony of the parties at hearing that they have been living together at the Sunshine address since mid-2011.

33. At hearing, the parties displayed a detailed and intimate knowledge of one another and of their lives, including their families and their respective work commitments. In the case of the applicant, the sponsor was also able to tell the Tribunal about a medical condition related to her liver from which she has been suffering and for which she receives half-yearly check-ups.

34. The applicant said that the parties have been trying to build their future. When asked by the Tribunal if this would involve having a child, the applicant said that it would. She said that the parties have been trying to conceive for the last few years and that it had been a problem for a while. She said that she had seen doctors and fertility specialists. She said that she has read about it and has tried to discuss it with the sponsor but he does not want her to be under pressure.

35. The Tribunal also notes the two contracts for real estate that appear on the Tribunal file. It accepts that these contracts – for properties in Sunbury – were not followed through on because of problems in obtaining finance owing to the applicant not having permanent residency. It accepts that these aborted attempts at joint home ownership provide some evidence that the parties view their relationship as a long-term one.

36. The Tribunal has considered the above evidence in coming to its findings. It finds that the parties draw a significant degree of companionship and emotional support from one another, having lived together and been married since 2011, or for a decade. It finds that the evidence points to them viewing their relationship as a long-term one.

37. The Tribunal accepts that the evidence relating to the nature of the parties’ commitment to each other points to them being in a genuine and continuing relationship, having a mutual commitment to a shared life as a married couple to the exclusion of all others and living together at the time of this decision.

    CONCLUSION

38. Given these findings the Tribunal is satisfied that the parties have a mutual commitment to a shared life as a married couple to the exclusion of all others, their relationship is genuine and continuing and they live together at the time of decision. The applicant therefore satisfies s.5F(2)(b), s.5F(2)(c) and s.5F(2)(d). As above, the Tribunal has found that the parties were married to each other under a marriage that is valid, and s.5F(2)(a) is satisfied.

39. Therefore, the requirements of s.5F(2) are met at the time of this decision and the parties are in a married relationship. Because they are in a married relationship, the applicant meets the definition of “spouse” under s.5F. She therefore meets cl.801.221(2)(c)

40. 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 801 visa.

    DECISION

41. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

    ·cl.801.221(2)(b), cl.801.221(2)(c) and cl.801.221(2)(d) of Schedule 2 to the Regulations.

    David Crawshay
    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).