Lam (Migration)

[2023] AATA 4335

Lam (Migration) [2023] AATA 4335 (17 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ngoc Son Lam
Mr Ngoc Khang Lam
Mr Ngoc Qui Lam

REPRESENTATIVE:  Mrs Pauline Lam (MARN: 9476142)

CASE NUMBER:  1909512

HOME AFFAIRS REFERENCE(S):          BCC2014/1972809

MEMBER:Jennifer Cripps Watts

DATE:17 December 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Partner (Residence) (Class BS) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl 801.221(2) of Schedule 2 to the Regulations

Statement made on 17 December 2023 at 4:42pm

CATCHWORDS

MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – genuine and continuing partner relationship – joint social activities and family events – shared finances, assets and liabilities – shared care of merged family – joint travel – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cl 801.221; r 1.15

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 Home Affairs on 12 April 2019 to refuse to grant the applicants Partner (Residence) (Class BS) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant (the applicant) applied for the visa on 12 August 2014 on the basis of his relationship with his sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 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.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 801.221 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant continued to be in a married relationship with the sponsor.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether, at the time of decision, the applicant continues to be in a married relationship with the sponsor:  cl 801.221.  The Tribunal is considering the same substantive issue on which the applicant’s visa was refused.   

   Whether the parties are in a spouse or de facto relationship

6. Relevantly to this matter, cl 801.221(2)(c) requires that at the time of this decision the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant.  In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen, and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

7. ‘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 visa applicant’s and sponsor’s 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 applicant and sponsor (the parties) validly married?

8. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.  On the evidence, the parties were married to each other on 9 August 2014 under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a). 

   Background of the relationship

9. The applicant, who holds a subclass 820 visa, claims to continue to be in a genuine and continuing married relationship with the same sponsoring partner he had for the subclass 820 visa.  The applicant’s subclass 820 visa was granted on 25 August 2015.  On 27 January 2016, the second and third named applicants in this case were granted subclass 445 visas and arrived onshore in March 2016.  Essentially, a subclass 445 visa is granted to a dependent child of a visa holder for the purpose of allowing them to stay in Australia temporarily while their parent applies for a permanent visa.

10. Permanent stage processing application lodged in an online form on 26 September 2016.

11. The Tribunal is reviewing this application on the basis, and accepting, that the parties were in a genuine married relationship up to the time the subclass 820 visa was granted on 25 August 2015.   It is evidence supporting the subclass 801 permanent partner visa application, from that time onwards, that is relevant on review.  Nearly four years passed, after the grant of the subclass 820 visa, before the applicants were notified that their subclass 801 visas had been refused, on 12 April 2019.  The review application was lodged in April 2019; some four and a half years has elapsed since that time.  The applicant’s case was constituted to this member on 9 November 2023.   While the lengthy delay is regrettable, the reason is due to the large backlog of review applications held by the Tribunal. 

12. A very substantial bundle of documentary evidence exists in this case, on the Department and Tribunal files.  The documents provided to the Tribunal recently include, among other things, updated personal statements from each of the parties.  They are generally consistent with one another, and dated 21 April 2023.  With reference to their declarations and other information on the files, the history of their relationship is as follows.

13. The parties married each other on 9 August 2014 and the applicant’s subclass 820 visa was granted a year later.  Prior to their marriage, the sponsor had bought a 3 bedroom house at Gladstone Street in Cabramatta.  The parties and their children have lived there at all relevant times.  The sponsor has a daughter and a son from a previous marriage, Quyen and Phuc.  The applicant has two sons, Khang and Qui.  They have converted the garage into a bedroom for the sponsor’s son.  Her daughter has a bedroom, the applicant’s two sons share a room and the parties have the master bedroom in the main house.

14. From the time the secondary applicants arrived in Australia they have attended school here.  The older of the two boys is now at university.  Written and photographic evidence has been provided of the parties, their children and other family members in Australia and Vietnam from 2015 to date.  The parties have provided photographs of themselves together at significant events, including their birthdays and birthdays of other relatives through this eight year period, at the homes of relatives and out at various local restaurants.  The parties have a joint account, their own individual bank accounts and the applicant contributes to the mortgage payments for the Gladstone property where the family lives.  The bank statements provided to the Tribunal show purchases that would typically be described as costs relating to day-to-day living, including from the supermarket, chemist and hardware store.  There are direct credits and interbank transfers of the parties’ salaries.

15. The parties each declare the other in their tax returns.  They have joint private health insurance and each have a car that is registered to the Gladstone Street address.  In addition to Form 888 statutory declarations provided at the time of application for the subclass 801 visa, from the applicant’s sister and aunty, the parties have provided additional and recent Form 888 statutory declarations from two long term friends; one works with the sponsor and has known the parties for four years, the other has known them for eight years through their friendship with the applicant’s mother.  They all socialise together regularly.

    Are the other requirements for a spouse relationship met?

16. The additional documentary evidence provided to the Tribunal in support of the application has been carefully considered, together with the documentary evidence on the Department file.  The description of the parties relationship, given above, was written with the reg 1.15(3)(a)-(b) matters in mind and aspects of each were addressed.  For the sake of

    The financial aspects of the relationship – reg 1.15(3)(a)

17. The Tribunal has had regard to any joint ownership of assets; joint liabilities; the extent of pooling of the parties’ financial resources; any legal obligations owed by one party to the other; and any sharing of day-to-day household expenses.

18. The additional evidence relating to the financial aspects of the parties relationship provided to the Tribunal includes the following:

    ·     2018-2023 tax returns

    ·            Westpac, Commonwealth and ANZ bank statements

    ·            Receipts in joint names for purchases of a microwave oven from Powerland and other items from Bing Lee

19. Similar information, for the period prior to 2019, was provided to the Department in support of the subclass 801 visa application and has also been considered by the Tribunal.

20. The Tribunal is satisfied, having considered the financial evidence the parties provided, that they share their finances, assets and liabilities in a manner that may be considered usual for a mature married couple with children.

    Nature of the parties’ household – reg 1.15A(3)(b)

21. The Tribunal has had regard to any joint responsibility have for the care and support of children; the parties' living arrangements; and any sharing of housework.

22. The additional evidence provided to the Tribunal regarding the nature of the parties household includes the following:

    ·     Drivers licences for both parties addressed to them at Gladstone St

    ·     QBE third party insurance addressed to the sponsor at the Gladstone St address

    ·            Car registration for a Toyota addressed to the applicant, and a Yaris for the sponsor, both showing the Gladstone Street address

    ·Roads and Traffic letter to the applicant at the Gladstone Street address relating to his drivers licence and demerit points statement

    ·            Medibank Private Health Insurance letter statement to Gladstone St, 2019, both the sponsor and applicant are included in the policy

    ·Medibank health cards showing the applicant, his two sons, the sponsor and her son registered at the Gladstone Street address

    ·     A letter from Medicare at the Gladstone Street address confirming that from 2021 the applicant his two sons, the secondary applicants, have their information linked to servicesaustralia.gov.au

    ·     New South Wales government letter from Temporary Resident Education addressed to the applicant at Gladstone St relating to an application in 2019 his son, Khang

    ·     A hotel receipt from Vietnam in the parties’ joint names dated 19 December 2022

    ·     Cabramatta High School Year 10 report 2023 for the applicant’s younger son, recording his Gladstone Street address

    ·            And a confirmation at the Gladstone Street address from Western Sydney University relating to the older of the two boys studying a Bachelor of Computer Science in 2023

23. The Tribunal has considered this additional information and the information previously provided to the Department in support of the parties sharing a household and the care of children, both individually and cumulatively.  Cumulatively, the evidence extends over a period of around eight years since the time applicant’s sons joined him in Australia.  The Tribunal is satisfied, noting that regard was also had to the 2016 and recent updated personal statements of the parties, that the parties’ living arrangements support them sharing a household and caring for their children together.

    Social aspects of the relationship – reg 1.15(3)(c)

24. The Tribunal has had regard to whether parties represent themselves to other people as being married to each other; the opinions of friends and acquaintances about the nature of the relationship; and any basis on which they plan and undertake joint social activities.

25. The additional evidence in support of the manner in which the parties represent themselves and their relationship to friends and family in Australia and Vietnam includes a large number of photographs taken in both Australia and overseas, where the parties and sometimes with their children, are socialising with many friends and relatives, at people’s homes, out sightseeing and eating out at restaurants and clubs.  The Tribunal has also had regard to the photographs provided with the subclass 801 visa application, which tend to indicate that they were engaged in the same, or similar, social activities from 2016, up to the time the visa was refused, and continuing to the time of this decision.

26. There are photographs at Hyams Beach, the Opera House, shopping in Sydney, the applicant celebrating a birthday at his mother’s house with a birthday cake, a picnic, visiting a Buddhist Temple with the applicant’s mother and sister, at Hai Au Restaurant in Canley Vale, celebrating the birthday of the applicant’s mother at the Holiday Inn Warwick Farm, and at the home of his sister in the following year, of the parties departing Australia with the secondary applicants in 2022 for Vietnam, and of a holiday they all took together to Bali, visiting the grave of the applicant’s father at Kien Giang and making a memorial offering, dinner at Cabravale Diggers and also at the 2023 Cabramatta Moon Festival.

27. The Form 888 statutory declarations provided at the time of application for the subclass 801 visas and updated forms provided to the Tribunal have already been mentioned earlier in this decision.  It is noteworthy that the applicant’s family members who provided statutory declarations are in many of the photographs that have been provided, especially so at significant family events or occasions.  They all attended the parties’ wedding and are generally consistent in their opinions that the parties are in a genuine and long term marriage.

28. The Tribunal is satisfied that the parties’ marriage is widely represented to their friends and family in Australia and Vietnam, that they socialise with them regularly in both Vietnam and Australia, and that their family and friends consider the marriage to be genuine.

    The nature of the parties’ commitment to the relationship – reg 1.15(3)(d)

29. The Tribunal has had regard to the 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.

30. Both parties provided statements in 2016 and updated statutory declarations in 2023.  The Tribunal has carefully considered the information contained in them.  They are generally consistent with one another and, considered together with the other evidence on both the Department and Tribunal files referred to above, support that the parties have been married to each other since 2014, that they have lived together with their children at the Gladstone Street address up to the time of this decision, that they support each other, travel together and socialise together widely and see the relationship as long term.

    Other circumstances – reg 1.15A(2)

31. With reference to the primary decision record, the decision to refuse the applicant’s subclass 801 visa, and as a consequence the visas of his sons, seems to have been based primarily on concerns the delegate had about the inception of the relationship and matters relating to the haste with which it progressed to marriage.  It is not an insignificant matter that the applicant’s subclass 820 visa was granted, and no findings were made against the subclass 820 visa in the delegate’s decision refusing the subclass 801 visas.  The Tribunal, as stated earlier, has confined its review to the decision to refuse the applicants’ subclass 801 visas.

32. A NDC on the Department file specifies that folios 156-159 disclose investigative methods and that it would not be in the public interest to disclose these methods.  The information relating directly to the applicant that is covered by the NDC includes reference to the applicant’s 2013 visitor visa application.  The Tribunal does not consider the information to be materially relevant to the question of whether the parties, since the subclass 820 visa was granted in 2015, continue to be in a genuine and continuing married relationship.

    Conclusion

33. With reference to the matters discussed above, reg 1.15(3)(a)-(d) and reg 1.15A(2), the Tribunal is convinced that the evidence strongly supports that the parties have a mutual commitment to shared life to the exclusion of others; they have a genuine and continuing relationship; and they live together or not separately and apart on a permanent basis.  Departmental records confirm that the applicant is the holder of a subclass 820 visa and that he continues to be sponsored by the sponsoring partner.

34. Given these findings the Tribunal is satisfied that the requirements of s 5F(2) are met at the time of this decision.  Therefore the applicant meets  cl 801.221(2) and the appropriate course is to remit the application for the visas to the Minister to consider the remaining criteria for a Subclass 801 visas.

    DECISION

35. The Tribunal remits the applications for Partner (Residence) (Class BS) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 801 (Partner) visa:

    ·cl 801.221(2)(c) of Schedule 2 to the Regulations

    Jennifer Cripps Watts
    Senior Member

    
    

    ATTACHMENT - 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).