LAM (Migration)

[2019] AATA 2747

LAM (Migration) [2019] AATA 2747 (17 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr VAN LON LAM

VISA APPLICANTS:  Ms THI ANH TRAN
Ms THI ANH DUONG TRAN

CASE NUMBER:  1807107

DIBP REFERENCE(S):  BC2017/1236348 BC2017/1847622

MEMBER:Steven Griffiths

DATE:17 May, 2019

PLACE OF DECISION:  Adelaide

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

·cl.309.211of Schedule 2 to the Regulations

·cl.309.221 of Schedule 2 to the Regulations

Statement made on 17 May 2019 at 10:35am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – spent a considerable amount of time together in Vietnam – joint social activities – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 309.211, 309.221

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 6 March 2018 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant, Ms Thi Ahn Tran, applied for the visa on 22 May 2017 on the basis of their relationship with their sponsor, Mr Van Lon Lam. 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. The other member of the family unit, Ms Thi Ahn Duong Tran, as an applicant 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 because the delegate was note satisfied the visa application was the spouse, as defined in s.5F of the Act, of the review applicant. This is a review of the delegate’s decision.  

4. The sponsor appeared before the Tribunal on 6 May 2019 to give evidence and respond to questions. He provided the Tribunal with a copy of the delegate’s decision. The Tribunal also received oral evidence from the visa applicant by telephone from Vietnam, with an interpreter used throughout the hearing.    

5. A registered migration agent, who operates overseas, has been engaged by the sponsor, but did not attend the hearing or by telephone.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal has taken into consideration all the evidence in the Department of Immigration and Border Protection’s file and the Tribunal’s file, including additional information provided to the Tribunal and the evidence from the Tribunal hearing.

   ISSUE

8. The issue is whether the visa applicant is the spouse, as defined in s.5F of the Act, of the sponsor.

   BACKGROUND ON THE EVIDENCE

9. In 1947 Mr. Lam was born in Bac Lieu, Vietnam. His parents are deceased and he has 4 siblings, all living in Australia. He has been in 2 relationships in the past resulting in children, one long term, and has 5 children (born between 1969 & 2004), with the eldest 4 living in Vietnam and the youngest with him in Australia since 2017 to attend school. He became an Australian citizen on 15 November, 1983.

10. Ms. Tran was born in 1977 in Can Tho, Vietnam. Her parents and 7 siblings live in Vietnam. She has a daughter, born 22 August 1999, from a previous relationship who is the secondary visa applicant.

11. The sponsor and visa applicant gave evidence, which the Tribunal accepts, that they first met in Vietnam in August 2011 when he stayed at the Hotel she operates while he was in Vietnam for an extended period, with the relationship developing from that time both from discussions after he returned to Australia and from his later travel to Vietnam.

12. The Tribunal notes from Movement Records, that the sponsor since meeting the visa applicant travelled to Vietnam 7 times, with the 3 trips between 2013 and 2016 staying with the visa applicant for periods of between 5 months and 11 months, and for the 2017 to 2019 trips being of between 6 weeks and 3 months.

    INFORMATION TO THE TRIBUNAL

13. The Tribunal has regard to the further information the sponsor provided, including: -

    Eight records of money transfer, between 3/7/18 to 4/3/19 totalling $ 1500 from the sponsor to the visa applicant

    Telephone records from June 2018 to March 2019

    Temporary Residence confirmation forms detailing the times the sponsor spent with the visa applicant in Vietnam after the decision by the delegate.

    Certificate of Business Registration of the Hotel operated by the visa applicant

    Travel service flight details for the trip to Vietnam prior to the delegate’s decision.

    Copies of 20 photos from the wedding and 19 photos taken in the time together.

    Is the applicant the spouse of an eligible citizen

14. Clause 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. The Tribunal has regard to an apparently genuine certificate of Australian Citizenship, dated 15 November 1983, by the sponsor and finds the sponsor to be an Australian citizen.  

    Whether the parties are in a spouse or de facto relationship

15. ‘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).

16. 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 visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.

    Are the parties validly married?

17. At the time the visa application was made the visa applicant provided evidence of being married to the sponsor. The parties have provided a translated Certificate of Marriage as evidence of their marriage on 11^th May 2017 in Vietnam. The Tribunal has regard to this document and finds that the parties were married to each other at the time of the visa application and of the decision, with the marriage valid for purposes as required by s.5F(2)(a) of the Act. 

    CLAIMS AND FINDINGS

    Financial aspects of the relationship

18. The Tribunal accepts that at the time of the visa application and this decision, the parties do not have and have never had any joint asset or joint liabilities with regard to the other party, or any legal obligation owed to the other party.

19. The visa applicant operates, and confirmed during evidence at the hearing that she owns, a 12 room Hotel in her village at which she first met the sponsor. The Tribunal accepts that the sponsor has never had an interest in this asset.

20. The visa applicant in evidence at the hearing noted that with a move to Australia she would sell the Hotel. A translated Certificate of Business Registration provided to the Tribunal after the decision by the delegate, notes the Hotel to be valued at 150 million Vietnam Dong, approximately $ 9,300 Australian.  The Tribunal accepts this evidence.

21. The sponsor commented at the hearing that he has previously owned a home, but suffered a work place injury some time ago and has not worked since. He now lives in rented public housing in Adelaide with his only income being Government support and savings.

22. The Tribunal accepts the evidence, provided since the time of the delegate decision, that the sponsor has provided 8 money transfers totalling Australian $ 1500 since July 2018 to the visa applicant, which has assisted with university education costs of her daughter.  The Tribunal accepts that with this support there has been some pooling of financial resources.

23. The Tribunal finds that the parties have not provided evidence of shared day-to-day expenses, but the Tribunal does accept the sponsor spending extensive period in Vietnam with the visa applicant and living with her at the hotel, so affords this little weight.  

    Nature of the household

24. The Tribunal accepts the evidence of both parties that the sponsor has stayed at the Hotel for each of his visits to Vietnam since developing a relationship with the visa applicant.

25. Both parties noted independently at the hearing that the sponsor assisted with small building maintenance work at the Hotel and tended to the garden areas.

26. The Tribunal accepts the evidence of both parties that the secondary visa applicant, while at university away from home at this time but returning home on weekends, has spent considerable time with the sponsor during the relationship of the parties.

27. The 14 year old daughter of the sponsor has lived with him in Australia since 2017 to attend Australian schools, returning to Vietnam once per year to visit her mother. The Tribunal notes that since the arrival of his daughter, trips by the sponsor to Vietnam to be with the visa applicant have been for shorter periods and accepts this as caring for a child in such a way that it impacts on the sponsor and visa applicant.  

28. Evidence provided at the hearing is that the first wife of the sponsor, who is not her mother, cares for the girl when the sponsor is overseas. 

29. The visa applicant confirm at the hearing that she has spoken to the Australian based children of the sponsor and discussed at the hearing the grandchildren of the sponsor.

30. The Tribunal accepts that the parties live in different countries but determines that as they have spent a considerable amount of time together in Vietnam they have formed a household during these times.   

    Social aspects of the relationship

31. The Tribunal accepts that 20 of the photos provided are of the parties wedding in Vietnam, with members of both families identified at the hearing.

32. The Tribunal notes the evidence to the hearing that 2 Australian based friends of the sponsor attended the wedding and determines this as an acceptance by his friends of the relationship.

33. The Tribunal accepts the parties’ submissions that as a result of spending considerable time together in Vietnam they identify as a married couple to friends in Vietnam and Australia.

34. The Tribunal notes the comment that the sponsor has met all the siblings of the visa applicant and that they usually visit them together.

35. The Tribunal notes that 19 of the photos provided are of times in which the parties have been together, often with family and friends, in Vietnam and is determines that this is evidence of them planning and undertaking joint social activities.  

36. The Tribunal accepts that within the limits of separation and communication options the parties are in regular contact with each other and have a social connection.

    Commitment to each other

37. The Tribunal accepts that since the relationship developed, the sponsor has made 7 trips to Vietnam to be with the visa applicant since May 2013 and spent approximately 1030 days together.  

38. The Tribunal notes the comments of both parties that the secondary visa applicant refers to the sponsor as Dad.  

39. The sponsor informed the Tribunal, which it accepts, that while his 2 previous relationships, which resulted in children, were not official marriages that he married the visa applicant as he loves her.

40. The Tribunal accepts the evidence of electronic contact being made regularly for the times separated and were able to confirm issues of significance that have happened recently in their lives while apart.  

41. In response to hearing questions, both parties indicated, which the Tribunal accepts and believes was in place at the time of application, that they rely upon the other for emotional support when apart and view the marriage as being long-term.

42. At the hearing, the sponsor stated that the visa applicant is a cheerful, happy lady and the visa applicant stated that the sponsor is an open, friendly man.

43. The Tribunal has considered all the available evidence about the circumstances of the parties. The Tribunal finds that the evidence supports a determination that the parties, at the time of application and this decision, have a mutual commitment to a shared life as husband and wife to the exclusion of all others and that relationship is genuine and continuing.  

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

45. Therefore the first named visa applicant meets cl.309.211 and cl.309.221.

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

47. The Tribunal considers the secondary visa applicant should be reconsidered in light of its finding about the primary visa applicant.

    DECISION

48. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.211 of Schedule 2 to the Regulations

    ·cl.309. 221 of Schedule 2 to the Regulations

    Steven Griffiths
    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).