La (Migration) - [2023] AATA 3343

La (Migration) [2023] AATA 3343 (18 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Anh Thai La
VISA APPLICANT:  Ms Nhu Quynh Quach
REPRESENTATIVE:  Ms Doan Lai
CASE NUMBER:  2015839
DIBP REFERENCE(S):  BCC2020/1069470
MEMBER:Edward Howard
DATE:18 August 2023
PLACE OF DECISION:  Brisbane
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 (Partner (Provisional)) visa:
·cl.309.211(2) of Schedule 2 to the Regulations
·cl.309.221(1) of Schedule 2 to the Regulations

Statement made on 18 August 2023 at 2:57pm

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – couple view their relationship as a long-term one – Tribunal is satisfied their relationship is a genuine and continuing relationship – parties are validly married – evidence of long-term commitment to a spousal relationship – marriage is valid for the purposes of the Act– decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65, 360
Migration Regulations 1994, r 1.15, Schedule 2, cls 309.211, 309.221
CASES
He v MIBP [2017] FCAFC 206
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 October 2020 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 9 March 2020 on the basis of her relationship with her sponsor, 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. 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.309.211.
At the time of the delegate’s decision, the parties had provided limited evidence about the relationship and had displayed limited knowledge of certain aspects of each other’s lives, during departmental interviews.
Since that time, the parties have provided the Tribunal with significant evidence relating to the relationship beginning with a statement from the review applicant in October 2021, further evidence provided in January 2022, and more recent evidence received in May 2023.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
The visa applicant is Ms Nhu Quynh Quach, aged 26 years, a citizen of Vietnam and the review applicant is Mr Anh…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: La (Migration) [2023] AATA 3343
Case: [2023] AATA 3343
Decision Date: 18 August 2023

CaseChat Overview and Summary

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309, made by Ms Nhu Quynh Quach, a citizen of Vietnam, who claimed to be the spouse of Mr Anh Thai La, an Australian citizen. The Tribunal was required to consider whether the parties satisfied the criteria under cl.309.211 and cl.309.221 of the Migration Regulations 1994, which stipulate that the applicant must be the spouse or de facto partner of an Australian citizen, permanent resident, or eligible New Zealand citizen at the time of the visa application and at the time of the decision.

The primary legal issue before the Tribunal was to determine whether Ms Quach and Mr La were in a genuine and continuing spouse or de facto relationship at the relevant times. This involved assessing all the circumstances of their relationship, including financial, household, social, and commitment aspects, as outlined in reg 1.15A(3) of the Migration Regulations. The Tribunal also had to consider whether evidence of events occurring after the visa application date could be used to establish the existence or non-existence of the relationship at the time of application, in accordance with established case law.

The Tribunal reasoned that while the parties had provided evidence of their marriage and a relationship that commenced in early 2018, culminating in their marriage in February 2020, and the subsequent birth of a child, further consideration of all criteria was necessary. The Tribunal applied the principles that evidence of subsequent events can be relevant if it logically demonstrates the existence or non-existence of the relationship at the time of application. It was satisfied that the parties were validly married and that their relationship was genuine and continuing, and that they saw their relationship as long-term.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the visa applicant met the criteria under cl.309.211(2) and cl.309.221(1) of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. BACKGROUND The visa applicant is Ms Nhu Quynh Quach, aged 26 years, a citizen of Vietnam and the review applicant is Mr Anh Thai La, aged 25 years, an Australian citizen. The review applicant was born in Vietnam and became an Australian citizen in May 2016. The parties claim to have first met in January 2018, introduced through the review applicant’s uncle, who coincidentally, was to marry the visa applicant’s mother at that time. The review applicant had travelled to Vietnam with his uncle and met and socialised with the visa applicant during his time there between January and February 2018. The parties started dating on Valentine’s Day 2018 and together attended the wedding of the review applicant’s uncle and the visa applicant’s mother on 23 February 2018. The parties were next able to spend time together when the review applicant visited Vietnam from June to August 2018 and again from January to March 2019. The parties became engaged on 22 January 2020 and were married in Vietnam on 20 February 2020. They provided a copy of their marriage certificate. The review applicant has travelled to Vietnam on four further occasions to spend time with his wife since their marriage. His most recent trip was from January to February 2023. The visa applicant is now expecting a child with an estimated birth date of 15 October 2023.ISSUES AND LAW There is a two-stage process for offshore Partner visas. A visa applicant must first hold a provisional visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a permanent visa. The grant of a permanent visa would generally depend on whether the relationship has continued for a period of at least two years. In this matter, the Tribunal is considering the first, temporary stage. Where the Tribunal is considering a criterion that requires the definition of spouse or de facto partner to be met at the time of the visa application, the information supplied in relation to the reg 1.15A(3) matters may relate to circumstances after the time of application. In forming a view of the relationship at the time of application, the Tribunal must consider all relevant evidence, which may include evidence of events after the date of application insofar as it assists in the task of determining whether the visa applicant and the review applicant were in a partner relationship at the time of the application. Evidence of events after the visa application is relevant if it tends logically to show the existence or non-existence of facts relevant to the issue to be determined.[1] The issue in the present case is whether at the time of the visa application and the time of this decision, the parties satisfy the criteria under cl.309.211 and cl.309.221.Whether the parties are in a spouse or de facto relationship 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. In the present case the applicant claims to be the spouse of the review applicant who is an Australian citizen.[1] Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139 at [24] per Deane J which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time; and see also Bretag v IRT [1991] FCA 582 at [13]–[15].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 The Tribunal remits the application for a Partner (Temporary) (Class UF) visa, with the direction that the visa applicant meets the following criteria for a subclass 309 (partner) visa:·cl 309.211(2) of Schedule 2 to the Regulations·cl 309.221(1) of Schedule 2 to the RegulationsEdward HowardMemberATTACHMENT - Extract from Migration Regulations 19941.15ASpouse(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).

Ratio Decidendi

Legal Principle Established

The Tribunal remits the application for a Partner (Temporary) (Class UF) visa, with the direction that the visa applicant meets the following criteria for a subclass 309 (partner) visa:·cl 309.211(2) of Schedule 2 to the Regulations·cl 309.221(1) of Schedule 2 to the RegulationsEdward HowardMemberATTACHMENT - Extract from Migration Regulations 19941.15ASpouse(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).