Huynh (Migration)

[2018] AATA 2621

Huynh (Migration) [2018] AATA 2621 (13 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr HUYNH Ngoc Hung

VISA APPLICANTS:  Ms TRAN Thi Bich Thuy
Mr HUYNH Chanh Trien
Miss HUYNH Ngoc My Loan

CASE NUMBER:  1620086

DIBP REFERENCE(S):  OSF2016/039132

MEMBER:Shane Lucas

DATE:13 June 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the first-named applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211(2) of Schedule 2 to the Regulations; and

·cls.309.221 and 309.223 of Schedule 2 to the Regulations.

The Tribunal also remits the applications for the second- and third-named visa applicants for reconsideration in accordance with the original application.

Statement made on 13 June 2018 at 12:53pm

CATCHWORDS

Migration – Partner (Temporary) (Class UK) – Subclass 309 (Partner (Provisional)) visa –Genuine relationship – Resided together for periods of time – Financial aspects – Joint purchases for first named applicant’s residence and business – Review applicant works in business when in Vietnam – Visa applicant’s children dependent on the first named applicant for basic needs – Social aspects – Strong relationship with the first-named visa applicant’s  children – Credible oral evidence – Knowledge of each other’s personal histories – Decision under review remitted for reconsideration

LEGISLATION

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

Migration Regulations 1994 (Cth), r 1.15A Schedule 2 cls 309.211, 309.221, 309.223

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 November 2016 to refuse to grant the first-named visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The first-named visa applicant is a Vietnamese national born on 1 January 1972. She applied for the visa on 12 January 2016 on the basis of her relationship with the sponsor (“the review applicant”). The second- and third-named applicants are the visa applicant’s son (aged 23 years) and daughter (aged 14 years) respectively, being the children of her previous marriage. At the time the application was made, 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 the Regulations. The primary criteria must be satisfied by at least one applicant. Other members of the family unit 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 first-named visa applicant did not satisfy cls.309.211(2) and 309.221 of the Regulations because the delegate was not satisfied that the applicant was the spouse of the sponsor. The delegate considered that the information and evidence submitted in support of the application was not sufficient to demonstrate that the first-named visa applicant satisfied the definition of spouse under s.5F of the Act.

4. The review applicant seeks review of the delegate’s decision.

5. The review applicant appeared before the Tribunal on 18 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.

6. In response to a request of the Tribunal, the review applicant provided additional documentation on 31 May 2018 regarding the review applicant’s health and the dependent status or otherwise of the second-named visa applicant. This information was also considered in the making of this decision.

7. The applicant was represented in relation to the review by a registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether at the time of application the first-named visa applicant was the sponsor’s spouse for the purposes of the Act (cl.309.211); and whether at the time of decision, the first-named visa applicant continues to meet the requirements of cl.309.211 (cl.309.221).

   Relevant law

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 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 the circumstances of the relationship. This includes evidence of the financial and social aspects, the nature of the parties’ household, and their commitment to each other as set out in r.1.15A(3).

    Are the parties validly married?

11. If the parties are validly married, they may meet the requirements of a spousal relationship. The applicants provided a certified copy and accompanying accredited translation of a Marriage Certificate showing the marriage was made on 23 December 2015 at Ba Ria, Vietnam. There is nothing to suggest the marriage is not valid. The Tribunal is satisfied on the evidence 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 other relevant requirements met?

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 visa 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 first-named visa applicant claims to be the spouse of the review applicant. The parties provided documentation attesting that the review applicant (born in Vietnam on 12 June 1960) became an Australian Citizen on 13 March 1990. Accordingly, the requirements of cl.300.211(2) are met.

    Are the other requirements for a spousal relationship met?

13. The applicants provided documentation and oral evidence to the Tribunal that was not available to the delegate. This information has been considered in making this decision.

    Financial aspects of the relationship

14. The Tribunal received documentation and oral evidence regarding the financial aspects of the relationship. The documentary evidence provided pertains to a series of account statements from Sacombank in the name of the first-named visa applicant; and a number of receipts in joint names which the review applicant claims represent purchases made by the parties to improve the first-named visa applicant’s residence and family business (a bakery) in Ba Ria.

15. The first-named visa applicant’s bank statement includes one credit for 3 million VND (approximately 172 AUD) in the name of the review applicant. The receipts attest to the purchase by the parties of a motor vehicle (16 million VND, approximately 6665 AUD) on 8 October 2016; a fence (5.626 million VND, approximately 325 AUD) on 10 March 2017; a washing machine (4.95 million VND, approximately 285 AUD) on 9 October 2016; a water-cooled fan (3.8 million VND, approximately 220 AUD) on 15 March 2017; a steel door (3 million VND, approximately 170 AUD) on 5 September 2016; and a security door frame (1.482 million VND, approximately 85 AUD) on 5 May 2016. These purchases total some 7750 AUD.

16. In oral evidence, the review applicant stated that these various items were purchased by the parties for the purposes of improving the first-named applicant’s residence and family business in Ba Ria. In oral evidence, the first-named visa applicant affirmed that she and her two youngest children live at the property, and that she works in the bakery owned by her mother. The first-named visa applicant claimed that she receives approximately 10 million VND a month from the bakery, and that she also works as an agent for a life insurance company, in which capacity she earns some 6 million VND a month. At the times the review applicant has lived in Vietnam, the parties stated that he also works in the bakery, but does not draw any additional salary to the amount received by the first-named visa applicant. The parties claim that they share these earnings to acquit their day-to-day household expenses, and that the first-named visa applicant’s mother charges them no rent and also assist with the cost of food and other groceries. The parties do not maintain a joint bank account.

17. On consideration of the evidence, the Tribunal finds that the couple share the cost of day-to-day household expenses. The Tribunal finds that the couple have pooled their financial resources to some extent, and that the couple have jointly purchased major assets (i.e. a motor vehicle) and made other financial commitments with regard to the purchase of items to improve the first-named visa applicant’s residence and family business. The Tribunal finds no evidence that the couple have committed to joint ownership of real estate; no evidence that the couple have assumed any joint liabilities; and no evidence that either party owes any legal obligation in respect of the other.

18. Given the constraints of residing in separate countries, the Tribunal accords little weight to the financial aspects of the relationship in this case in determining whether the spousal relationship between the parties is genuine and continuing.

    Nature of the household

19. The Tribunal was provided with documentation and oral evidence that since their marriage in December 2015, the sponsor and the first-named visa applicant have lived together on three occasions, being from December 2015 to April 2016; June 2016 to June 2017; and November 2017 to January 2018. In oral evidence, the review applicant stated that he lived at these times in the home the first-named visa applicant shares with her mother and the second- and third-named visa applicants. The review applicant stated that he also works in his mother-in-law’s bakery at these times, and that all members of the household share domestic duties, noting that the first-named visa applicant and her mother do the majority of the housework and cooking.

20. The review applicant stated that he has participated fully in the life of the first-named visa applicant’s family at the times he has resided in Vietnam, and that he also visits the first-named applicant’s oldest daughter (resident in Maribyrnong, Victoria) when in Australia. The review applicant stated that he has developed a strong relationship with the first-named visa applicant’s dependent children in Vietnam, though he also noted that the children retain a good relationship with their father, the first-named applicant’s first husband. In response to questions from the Tribunal, the review applicant stated that the third-named visa applicant (aged 14 years) calls him “uncle”.

21. The review applicant stated that he returned to Australia in January 2018 for health reasons. Subsequent to the hearing, the review applicant provided the Tribunal with documentation from both The Royal Victorian Eye and Ear Hospital and Centrelink confirming that he was diagnosed with diabetic retinopathy on 4 September 2017 and commenced regular (fortnightly) treatment to address the condition on 15 February 2018.

22. On consideration of the evidence, the Tribunal finds that the couple have lived together for some 18 months since the time of their marriage in December 2015. The Tribunal finds that the parties share responsibility for housework and domestic duties; the Tribunal also finds that the parties have shared some responsibility for the care and support of children. The Tribunal is therefore satisfied that the nature of the couple’s household attests to the genuine and continuing spousal relationship between the parties.

    Social aspects of the relationship

23. The Tribunal was provided with oral evidence, photographic evidence and three written statements from friends of the first-named visa applicant attesting to the social aspects of the relationship.

24. The statements provided contained high-level, generic comments attesting that the persons know the parties; that the individuals were invited and/or attended the couple’s wedding ceremony in December 2015; and that the individuals are aware that the couple have lived together at the home the first-named visa applicant shares with her mother and her two youngest children. The statements contain no detail regarding the relationship and provide no specific information regarding the couple’s social interactions with friends in Vietnam, other than to state that the individuals have on occasion dined or had coffee with the parties. The Tribunal accords these statements little weight in determining the social aspects of the relationship.

25. The photographic evidence provided to the Tribunal shows the parties together and/or in the company of others in a variety of settings. While some photographs appear staged for the purposes of providing evidence of the couple’s claimed relationship, others appear casual and spontaneous. The diversity of settings (i.e. at restaurants; at the first-named visa applicant’s home; attending the wedding of the first-named visa applicant’s niece; at the beach, etc.) and the various timeframes associated with the review applicant’s extended periods of residence in Vietnam combine to suggest that the couple plan and undertake a range of joint social activities. The Tribunal accords the photographic evidence provided some weight in determining the social aspects of the relationship between the parties.

26. In oral evidence, the review applicant stated that the parties have presented themselves to some members of his family as a married couple. The review applicant’s sister attended the couple’s wedding in Ba Ria in December 2015 and the couple spent time with the review applicant’s elderly mother after the wedding. In further oral evidence however, the review applicant stated that he has not revealed his marriage to his brother (resident in Sydney, New South Wales) or to many of his friends in Australia. In response to questions from the Tribunal, the review applicant stated that this was because he does not want to “lose face” in the event that his wife’s visa application is unsuccessful. While the Tribunal is concerned that the review applicant does not present himself to his extended friendship network as being married to the first-named visa applicant, the Tribunal finds the review applicant’s response to this issue to be frank and credible. Accordingly, the Tribunal draws no adverse conclusion from the review applicant’s decision to keep his marriage private from his friends and acquaintances in Australia.

27. On consideration of the evidence, the Tribunal finds that the couple represent themselves to other people as being married to each other; and that the relationship is genuine and continuing in the opinion of others. The Tribunal is also satisfied that the couple plan and undertake joint social activities. The Tribunal is therefore satisfied that the social aspects of the relationship attest to the genuine and continuing spousal relationship between the parties.

    Nature of the person’s commitment to each other

28. In oral evidence, the review applicant gave the Tribunal a frank and credible account of the inception of the relationship between the parties. The review applicant stated that he was unable to find work in Australia in 2012 and so decided to spend an extended period of time in Vietnam with his elderly mother. During this twelve month period, the review applicant stated that he met the first-named visa applicant at a restaurant in Vung Tau in August 2013 while dining with a friend with whom he was briefly travelling. Neither the review applicant nor his friend knew the first-named applicant, but she and a friend were seated at an adjacent table and the review applicant started a conversation with her. The couple exchanged contact details at this first meeting.

29. After the review applicant’s subsequent return to Australia in September 2013, the parties claim that several months elapsed before the review applicant again contacted the first-named visa applicant. In oral evidence, the first-named visa applicant stated that she had been separated from her first husband for approximately a year at this time, and that she had only recently returned to live at her mother’s home with her two younger children. The couple began to speak regularly on Viber and a friendship developed.

30. In October 2014, the review applicant returned again to Vietnam and lived with his mother at her home in Ho Chi Minh City until February 2015. During this time, the review applicant claims he visited the first-named applicant in Ba Ria on several occasions and that the relationship between the parties continued to evolve. The first-named visa applicant divorced her first husband in July 2015; the review applicant stated that he felt “blissful” when the first-named applicant advised him that her first marriage was formally concluded, and that he proposed to her on 30 September 2015 by telephone. He returned again to Vietnam in November 2015 and the couple were married in December 2015. The review applicant remained in Vietnam until April 2016, residing at the first-named visa applicant’s family home with his wife, her two youngest children and her mother.

31. Since their marriage, the couple claim to have resided together for some 18 months, being periods from December 2015 to April 2016; June 2016 to June 2017; and November 2017 to January 2018. The parties provided the Tribunal with credible oral evidence attesting to their knowledge of each other’s personal histories, habits, character, family arrangements, current circumstances and future aspirations as they have evolved over the course of their relationship. The review applicant stated that he would like to rent a larger home for the first-named visa applicant and her children should this application be successful, and that the couple plan to open a bakery in Australia. The first-named visa applicant demonstrated an excellent knowledge of the review applicant’s health issues and the importance of closely managing his diabetes and associated medical issues as he gets older (the review applicant is 58 years of age). The couple also provided consistent oral evidence regarding the emotional support and companionship they provide to each other, be it at those times they have resided together in Vietnam or through regular telephone contact in the months they have spent apart.  

32. On consideration of the evidence, the Tribunal is satisfied regarding the duration of the relationship and the length of time the couple have lived together (and not lived separately and apart) since their marriage in December 2015. The Tribunal is also satisfied that the persons draw on each other for a significant degree of companionship and emotional support, and that they view their relationship as a long term one.  The Tribunal is therefore satisfied that the nature of the persons’ commitment to each other attests to the genuine and continuing spousal relationship between the parties.

    Other matters for consideration

33. Of concern to the delegate in considering this application at the primary stage was an anonymous allegation received by Home Affairs that “the [first-named] applicant would enter into a contrived relationship.” The delegate stated:

    “While I accept that there is no definitive evidence available to substantiate the allegation made against the [first-named] applicant, the fact that such an allegation has been made compels me to examine more critically all of the claims made by the parties in support of this application. In view of my very significant concerns about the nature of this relationship…, I cannot be satisfied that there is no substance to the allegation.”

1. Pursuant to s.359AA of the Act, the Tribunal put this allegation to the review applicant during the course of the hearing on 18 May 2018. In response, the review applicant stated that while he has some suspicions regarding the possible source of the allegation, he was unable and unwilling to make any definitive comments regarding the source as he could not be sure. As he had previously advised the delegate, the review applicant reiterated that the allegation is unfounded and that the relationship between the parties is a genuine and continuing one.

2. In considering this potentially adverse information, the Tribunal notes that the allegation was made anonymously at some time in 2016; the Departmental file contains no additional or other information pertaining to the allegation; the allegation itself contains no evidence or detail of substance; and the allegation cannot be tested by the Tribunal as it was made anonymously. Accordingly, the allegation is given no weight in determining this application or considering the nature of the relationship between the parties.

   Dependent status of the second- and third-named visa applicants

3. The first-named visa applicant’s application claims that her two youngest children (being 23 years of age and 14 years of age respectively) are dependent on her for financial support to meet their basic needs for food, clothing and shelter. In oral evidence, the first-named visa applicant stated that the third-named visa applicant is wholly reliant on her and attends school in Ba Ria. The first-named visa applicant also stated that the second-named visa applicant is studying a hospitality course at Vung Tau and that he presently lives in share accommodation with other students in that city, some 45 minutes’ drive from the first-named visa applicant’s home in Ba Ria. The first-named visa applicant stated that the second-named visa applicant works part-time to help support his studies, but remains substantially reliant on her for financial support to meet his basic needs for food, clothing and shelter.

4. Pursuant to r.1.05A of the Regulations, the Tribunal sought additional documentation regarding the dependent status or otherwise of the second-named visa applicant. On 31 May 2018, the Tribunal was provided with certified copies and accompanying accredited translations of documentation from Vung Tau Tourism College stating that the second-named visa applicant is a student at the college, and that he is currently completing vocational and English language studies in support of his hospitality qualifications for which he has five outstanding subjects. The Tribunal was also provided with a certified copy and accompanying accredited translation of documentation (the Family Book) from the relevant authorities in Ba Ria stating that the second-named visa applicant (and the first- and third-named visa applicants) are resident in the home of the first-named visa applicant’s mother.

5. On consideration of this evidence, the Tribunal finds that the second- and third-named visa applicants are wholly or substantially reliant on the first-named visa applicant to meet their basic needs for food, clothing and shelter, and hence satisfy r.1.05A(1)(a)(i) of the Regulations.

6. Having regard to all the circumstances of the relationship, the Tribunal is satisfied that when the application was made and at the time of this decision, the first-named visa applicant and the review applicant had a mutual commitment to a shared life to the exclusion of others. The Tribunal is satisfied that the couple’s relationship is genuine and continuing. The Tribunal is satisfied that the first-named visa applicant and the review applicant have lived together (and are not living separately and apart on a permanent basis) and have a shared commitment to a future as a married couple.

7. On the basis of the above, the Tribunal is satisfied that the requirements of s.5F(2)([a]-[d]) are met at the time the visa application was made and at the time of this decision. Therefore the first-named visa applicant meets cls.309.211(2)(a), 309.221 and 309.223.

   Conclusion

8. Given the findings above, the appropriate course is to remit the application for a visa to the Minister to consider the remaining criteria for grant of a Subclass 309 visa.

9. As the Tribunal is remitting the application for the visa by the first-named visa applicant, it is appropriate that the applications by the second- and third-named visa applicants also be reassessed.

   DECISION

10. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the first-named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.211 of Schedule 2 to the Regulations; and

    ·cls.309.221 and 309.223 of Schedule 2 to the Regulations.

11. The Tribunal also remits the applications by the second- and third-named visa applicants for consideration in accordance with the original application.

    Shane Lucas
    Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (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).