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

1. 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).

2. 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211.

4. 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.

5. 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.

6. 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.

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

   BACKGROUND

8. 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.

9. 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.

10. 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.

11. 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

12. 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.

13. 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]

14. 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

15. 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].

16. ‘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.

    Are the parties validly married?

17. On the evidence, the parties were married to each other in December 2014 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 including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

18. As noted in the delegate’s decision, limited information was provided in relation to the financial aspects of the relationship. The Tribunal is now in receipt of further evidence.

19. The evidence provided confirms that the review applicant provides financially for the visa applicant, including transferring money to her from Australia and taking funds with him when visiting Vietnam. The Tribunal has been provided with evidence of a total of 56 money transfers from the review applicant to the visa applicant extending from May 2020 until May 2023, in excess of AU$19,000.

20. The Tribunal finds on the evidence that the parties do not have joint ownership of any real estate or other major assets. The Tribunal accepts that due to the fact that the parties live in different countries the financial aspects of the relationship are limited and the parties have no liabilities nor owe legal obligations to each other. However, the parties have provided evidence that they pool their financial resources, and the review applicant contributes significantly to regular expenses of himself and his wife. The Tribunal takes note of the ongoing financial assistance which the review applicant has provided to his wife on a regular basis over a number of years. The Tribunal weighs the financial aspects of the relationship in favour of the visa applicant.

    Nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

21. Whilst the visa applicant has continued to live in Vietnam, the review applicant visited the visa applicant on two occasions times prior to the visit when their wedding was held. Following their marriage, he has visited his wife on four further occasions, with a two-year gap in visiting caused by the Covid-19 pandemic.

22. The evidence of the parties is that they stayed together and travelled to many places during the review applicant’s visits. As a couple, they lived in the review applicant’s uncle’s home.

23. The Tribunal is satisfied that the parties’ household and living arrangements are consistent with that of a married couple in a genuine relationship. The Tribunal weighs consideration of the household aspects of the relationship in favour of the visa applicant.

    Social aspects of the relationship – including whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

24. The parties have provided a number of supporting statements from family members, attesting to the genuineness of their relationship.

25. The parties have also provided a significant number of photographs of themselves as a couple and in the company of family and friends, taken between 2018–2023.

26. The photographic evidence depicts the parties spending time together in various settings such as dining out, socialising with family and friends and travelling on holidays. They also provided photographs of the engagement party.

27. The Tribunal is satisfied on the evidence that the parties represent themselves to other people as being married to each other, that they hold the favourable opinion of friends and family members about the nature of the relationship and that they plan and undertake joint social activities. The Tribunal weighs the social aspects of the relationship in favour of the applicant.

    Nature of persons' commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

28. 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 travelled to Vietnam with his uncle and met and socialised with the visa applicant during his time there between January and February 2018.

29. 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.

30. The parties became engaged on 22 January 2020 and were married in Vietnam on 20 February 2020. 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 15 October 2023.

31. The Tribunal considers that the parties’ evidence supports a view that they are committed to a genuine and continuing relationship as a married couple. The Tribunal places weight upon their commitment to each other over a period of five and a half years since their relationship began.

32. From the evidence provided, the Tribunal finds that the parties are in a genuine and continuing relationship, show a strong commitment to each other, provide significant emotional support to each other and clearly see the relationship as long-term. The Tribunal weighs the nature of the commitment in favour of the visa applicant.

    Conclusion

33. On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made and at the time of this decision.

34. Accordingly, the Tribunal is satisfied the visa applicant meets cl.309.211 and cl.309.221.

35. 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

36. 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 Regulations

    Edward Howard

    
    

    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).