Juan (Migration)
[2023] AATA 3862
•24 July 2023
Juan (Migration) [2023] AATA 3862 (24 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mrs Shih Po Juan
(ALIAS: Thi Ba Nguyen)
REPRESENTATIVE: Ms Thu Ha Nguyen (MARN: 0747622)
CASE NUMBER: 1912423
HOME AFFAIRS REFERENCE(S): BCC2017/1739945
MEMBER:Brendan Darcy
DATE:24 July 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211 of Schedule 2 to the Regulations; and
·cl 820.221(1) of Schedule 2 to the Regulations.
Statement made on 24 July 2023 at 11:44am
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – financial aspects – nature of the household – social aspects – nature of the commitment – decision under review remittedLEGISLATION
Marriage Act 1961 (Cth), ss 23B, 88D
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 820.211, 820.221STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 15 May 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211 and cl 820.221 because the delegate was not satisfied there was sufficient evidence to meet s 5F and r 1.15A at the time of application or at the time of decision.
On 25 May 2019, the visa applicant (or applicant) sought to have the delegate’s decision reviewed.
The applicant was represented in relation to the review.
Following an outreach by the Tribunal in March 2023, the parties, via their representative, provided an updated statement by the applicant as well as financial, photographic and other documentary evidence about their claimed spousal relationship.
In this context and other documents and statements, the issues that required determination and were supported by, or referred to, specific evidence provided or already provided.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether applicant was the spouse of her sponsor at the time of the application and whether she continues to be so at the time of this decision.
Whether the parties are in a spouse or de facto relationship
Clauses 820.211 and 820.221(1) 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 permanent resident.
‘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.
Background
The applicant, Mrs Shih Po Juan (alias: Thi Ba Nguyen), was born on 12 June 1973. She is a national of the Republic of China (Taiwan). The applicant is from a Vietnamese background and ahs travelled between Taiwan and Vietnam on numerous occasions between 2007 and 2017 to visit family. The applicant first arrived in Australia on a Subclass 976 visitor visa in August 2012. She returned to Australia on the same subclass of visa in February 2013. The applicant returned to Australia in May 2014, in December 2015, August 2015, in June 2016 and in February 2017 while holding Subclass 601 visitor visas. With each visit the applicant departed Australia without overstaying her visas.
When the applicant applied for a combined 820/801 partner visa application on 16 May 2017, she was holding a Subclass 601 visa and was then granted an associated Subclass 010 bridging visa while her partner visa application was being fully determined.
The applicant disclosed a previous relationship in which she was married in Taiwan on 23 March 1999. That marriage ended in January 2015. No children from this relationship were claimed.
The sponsor, Mr Huang Nam Le, was born on 7 February 1972 in Vietnam and is a citizen of that country. When the applicant arrived in Australia on 15 May 2012, he held a permanent residency visa as a holder of an offshore partner visa. A copy of his Vietnamese passport issued in January 2012 is on departmental file.
The sponsor had previously married on 30 August 2009. That marriage ended with divorce on 28 December 2014. There were no children from this relationship.
The applicant and sponsor married on 26 April 2017. A copy of an Australian marriage certificate was provided.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.
On departmental file is a copy of the parties’ marriage certificated indicating the marriage was solemnised in accordance with the Marriage Act 1961 (Cth) (the Marriage Act) on 26 March 2017 at 245 Ballarat Road, Braybrook. It was registered by the relevant authority in the State of Victoria.
On departmental file is a copy of a divorce order dated 27 November 2014 indicating the sponsor’s marriage that had been entered into in August 2009 had been dissolved. The divorce order was issued by the Federal Circuit Court of Australia.
A marriage will be considered void under s 23B/s 88D of the Marriage Act 1961 (Cth) (the Marriage Act), should a person claiming to be party to a marriage be lawfully married to someone else.
Also is a copy of the applicant’s civil judgment order dated 22 January 2015 indicating that marriage the applicant had been entered into in March 1999 had been dissolved. The divorce order was issued by the New Taipei District Court of Taiwan. The divorce is also reflected in the transcript of applicant’s Taiwanese household registration.
There is evidence that both these marriages were dissolved under provisions for divorce in the Marriage Act and the divorces occurred prior to date of the marriage between the parties relevant to this application for review. Accordingly, this consideration is not applicable.
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) and the Marriage Act.
Are the other requirements for a spouse relationship met?
The delegate was generally not satisfied that there was sufficient evidence to demonstrate that the applicant and the sponsor had significant joint assets or liabilities or that they have made any significant joint purchases or pooled their financial resources. Furthermore, the delegate was not satisfied about the nature of the commitment between the applicant and the sponsor, stating that the evidence provided was limited and inconsistent with the claimed duration of the spousal relationship. It is apparent from the departmental file that the parties were not interviewed.
The Tribunal has considered the evidence that was provided with the primary application but have also had the benefit of additional evidence that has been submitted to the Tribunal more recently. A summary of the evidence and the Tribunal’s assessment about whether it is satisfied about the relationship, as required under subregulations 1.15A(2) and 1.5A(3)(a), (b), (c) and (d), is set out below.
Financial aspects of the relationship
The delegate considered the following financial related evidence:
· Joint bank statements from the National Australia Bank (NAB) between April 2018 to December 2018, showing cash deposits (which appears to the only source of credits) and limited use for various purchases at supermarkets, petrol stations and general stores;
· A home loan offer letter from NAB to the sponsor dated 25 May 2017 offering a credit of $335,00.00;
· The sponsor’s NAB account statements between May 2017 and February 2019, showing regular cash deposits and regular loan repayment;
· the sponsor’s ANZ bank statements between May 2017 and February 2019 (it appears that the sponsor’s salary is paid to this account); and
· Evidence of purchasing of a roller shutter at their claimed address (including tax invoices and receipt of payment in joint names) in March 2018.
Significantly, according to the applicant’s statement, the sponsor purchased a house in June 2017. However, the applicant’s name is not on the title due to her immigration status. The house is at residential address at Sunhill Crescent in Ardeer in western metropolitan Melbourne. The delegate placed adverse weight on this.
The Tribunal has subsequently received an updated statement by the applicant dated 11 April 2023. In that statement, the applicant reiterates that only the sponsor’s name on their house title was because she did not have a permanent residency visa but both of them are contributing to the mortgage payment. The applicant states that the sponsor is working full-time while she is working part-time and both of their wages go to the joint bank account.
They use the funds in the joint bank account to pay for the mortgage, insurance, utility bills, food and all other daily family expenses. The applicant also explains the nature of other cash deposits from various people showing in the joint bank statements.
There is also evidence of joint bank statements covering the period between February 2020 and March 2023, showing the salary deposits from both parties, regular mortgage repayment and frequent payment at supermarkets and for insurance. Each of the applicant and sponsor’s tax returns for 2019, 2020, 2021 and 2022 showing parties nominated their joint bank account for electronic funds for payment of refund was also submitted.
While there is little evidence of shared assets, including the sponsor’s residence in Ardeer, in the context of the overall evidence, the Tribunal has not placed adverse weight on this.
The parties have sufficiently demonstrated pooled finances and shared household expenses and some jointly owned assets and liabilities, and the evidence is strongly indicative of a spousal relationship for the purposes of r 1.15A(3)(a).
Nature of the household
The delegate took into account the following supportive, albeit limited, evidence about the nature of the household:
· Electricity and gas bills in joint names ranging between a period from July 2017 to February 2019; and
· Various documents including the bank statements and utility bills addressed to parties jointly or separately at their claimed residential address in Ardeer.
The Tribunal has subsequently received the following:
·Written claims that the applicant and the sponsor have been living in the house they purchased in the sponsor’s name since July 2017;
·Written claims the parties share household chores;
·A selection of joint gas and electricity bills addressed to their Ardeer address were provided, with issuing dates ranging from August 2017 to March 2023;
·The tax returns referred to above also show that the parties declared the Ardeer address as their residential address to the Australian Taxation office;
·A selection of council rates and water bills issued to the sponsor for a residency at the Ardeer address with issuing dates ranging from 2019 to 2023; and
·Each of their driver’s licence listing the Ardeer as their residential address.
Again, the evidence in this respect is limited but supportive they have shared the same residency as a married couple for more than five years. The Tribunal places no adverse weight on this limited evidence in assessing the genuineness of the parties’ otherwise valid marriage for the purposes of r 1.15A(3)(b).
Social aspects of the relationship
The delegate took into consideration two witness supporting statements, both signed in April 2017, one from the sponsor’s brother-in-law and one from a friend of the sponsor’s and a selection of 21 photographs taken between 2015 and 2018 of the parties themselves and with family members.
The Tribunal has subsequently received each of the applicant and sponsor’s tax returns for 2019, 2020, 2021 and 2022 referred to above showing parties having declared each other as their spouse; further 25 photographs marked as being taken between 2019 and March 2023 depicting of parties themselves and with family member or at social functions.
The Tribunal notes that there were no new witness statements submitted. Instead, the applicant resubmitted the same two witness supporting statements already provided to the department.
While the overall evidence of the applicants undertaking joint social activities together is limited, the Tribunal accepts that the evidence is sufficiently supportive of the relationship between the applicant and the sponsor being known to friends and family and is socially recognised for the purposes of r 1.15A(3)(c).
Nature of persons’ commitment to each other
The delegate took into consideration the parties’ statements which outlined the development of their relationship as one whereby they had been in an earlier (de facto) spousal relationship between 1993 and 1999. However, the relationship ended, and the applicant then married a Taiwanese national and subsequently settled in Taiwan to live with her husband. The sponsor who had earlier migrated to Australia met the applicant when visiting Vietnam in 2013 and thereafter remained in contact. The applicant visited the sponsor in Australia in May 2014 and the parties met in December 2016 in Vietnam for a holiday. They registered their marriage in Australian on 26 March 2017 and started living together as spouses. In June 2017, the sponsor purchased a house but the applicant’s name is not on the title due to her immigration status.
The delegate was not satisfied that was sufficient evidence this relationship to be a long-term one, that where the parties would draw emotional support and companionship from each other or that they had commitment to a shared life together
In the most recent statement by the applicant, it is stated the parties have been married for over 5 years and living in the same residence. The applicant asserted that their relationship in long-term, strong and happy and that they are committed to each other and emotionally support each other.
The Tribunal notes that parties have claimed to have previously been romantically involved with each other in the 1990s, which included a period of living with each other in Vietnam. Nevertheless, the parties separated from each other but later rekindled their relationship. With no evidence to the contrary, the Tribunal accepts this and that it indicative a relationship in which the parties provide each other with emotional support.
Based on the overall evidence and in placing particular weight on the five-year longevity of their married relationship, the Tribunal is satisfied that the applicant and the sponsor provide each other with companionship and emotional support and that they view the relationship as long term for the purposes of r 1.15A(3)(d).
For the purposes of r 1.15A(2), the Tribunal has also considered where there is any relevance of the parties having entered prior marriages for the sole purposes of obtaining Taiwanese permanent residency with respect to the applicant and Australian permanent residency with respect of the sponsor. Such as consideration is relevant to the genuineness of the relationship. In this matter, however, the Tribunal finds there is no adverse information to the contrary to invite further doubts about the genuineness and ongoing nature of this married relationship.
Therefore, it is satisfied their relationship is genuine and continuing and there is no evidence that they live separately and apart on a permanent basis.
On the basis of the above the Tribunal is satisfied that each of the requirements between parts (2)(b), (c) and (d) of section 5F is met at the time the visa application was made and the time of this decision.
Therefore clause 820.211 is met at the time of application. It follows from these findings that at the time of this decision, clause 820.211(1) is also met.
Summary
The Tribunal is satisfied that the parties married to each other under a marriage that is valid for the purposes of s 5F(2)(a) and the requirements of the Marriage Act.
On the basis of the above, the Tribunal has satisfied that the requirements of s 5F(2) are met at the time the visa application was made and the time of this decision.
Therefore, the applicant meets cl 820.211 and cl 820.221(1).
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.
DECISION
The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211 of Schedule 2 to the Regulations; and
·cl 820.221(1) of Schedule 2 to the Regulations.
Brendan Darcy
MemberATTACHMENT - 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).
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Immigration
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Administrative Law
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Judicial Review
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Procedural Fairness
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Statutory Construction
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