Lam (Migration)

Lam (Migration) [2023] AATA 2363 (28 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Dieu Nien Lam
REPRESENTATIVE:  Mr Huu Loc Nguyen (MARN: 1795573)
CASE NUMBER:  2015417
HOME AFFAIRS REFERENCE(S):          BCC2020/1707995
MEMBER:Alison Mercer
DATE:28 June 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Skilled Nominated (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a 190 - Skilled - Nominated visa:
·cl.190.311 of Schedule 2 to the Migration Regulations 1994.

Statement made on 28 June 2023 at 12:26pm

CATCHWORDS
MIGRATION –Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 – applicant provided a copy of a marriage certificate – couple have a mutual commitment to a shared life as a married couple – relationship is genuine and continuing – Tribunal is satisfied that the applicant is the spouse of the family head –decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65, 359. 360
Migration Regulations 1994, rr 1.12,1.15, Schedule 2, cl 190.311

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 Home Affairs to refuse to grant the applicant a Skilled Nominated (Permanent) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 9 June 2020. The primary visa applicant was Ms Le Uyen My Du, and the applicant applied as a member of her family unit (the de facto partner). The delegate refused to grant the visa on 15 October 2020 on the basis that the applicant did not satisfy the requirements of cl 190.311 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 190.311 of Schedule 2 relevantly requires the applicant to be a member of the family unit of the primary visa applicant at the time of decision. The delegate acknowledged that the applicant claimed to have been in a de facto relationship with Ms Du since 9 February 2020 but found insufficient evidence had been provided to establish that their relationship met the requirements of r.1.12 and s.5CB(2).
The Tribunal received a review application from the applicant on 16 October 2020. It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Huu Loc Nguyen, as his representative and authorised recipient for correspondence.
On 26 October 2020, the applicant and his agent provided the following documents:
·personal statements from the applicant and Ms Du;
·statutory declarations from Tuyet Nhu Do, Tuyet Ngan Lam, and Thi My Tran; and
·various photographs of the applicant and Ms Du together, and together with friends and family members.
In his personal statement, the applicant gave the following history:
…
I and my partner, Le Uyen My Du have been in a relationship together since February 2020.
This is a long story in our relationship because we met each other at the first time in around 2016 at the Starbucks coffee in Melbourne CBD via our mutual friends. After that, I invited her to watch movie in in Hoyts Melbourne Central and then we had dinner before home. This was the time when I lived in Footscray, Melbourne for studying my Master Degree. At that time, we were just normal good friends and just kept in touch via Facebook. After finished my study, I decided to come back my country (Vietnam) to open my own business. Therefore, we did not meet each other for quite long at that time.
In October 2019, I knew Le got a trip to Vietnam, so I invited her to Saigon for coffee and dinner. The time when we met up again was one of the best moments of my life. I felt that it was very different to the first time we met because it looked like a date. We met each other at Highland Coffee, District 1, Ho Chi Minh City. We talked about many things that happened in our life. She talked about her life when she studied nursing at ACU (Australian Catholic University) and how was difficult to find a job at Cabrini Hospital. I found that she is such a strong and talented girl. After that, we moved to the restaurant near there to have dinner. I talked with her about my business in Vietnam and she was very love to hear about it.
In December 2019, I made a decision to come back Melbourne for another study. I landed to Melbourne on 16th December 2019 and this time was nearly Christmas time. After that, I contacted to Le and she was very surprised when she knew that I am in Melbourne at the moment. Of course, we enjoyed the Christmas with her friends and her younger brother. We went to Highpoint for shopping and eating and it was very fun. Since that, we were keeping in touch to each other regularly. We chatted with each other almost every night before bed. At that time, I felt that I fell in love with her and she is the one who is continuously on my mind. However, I was very confused that whether I should express my feelings to Le or not. Therefore, I asked my sister advices and she said “Do not keep your feelings inside. When you care about someone, you should let her know. Express your love instead of keeping it bottled up inside, because even if you assume your person already knows how you feel, it’s always nice to hear the words spoken aloud”. From this advice, I decided to express my feelings to Le. Fortunately, at that time around the end January 2020, my aunt invited my sister, my mom and me to her house for the little party, so I also asked Le to join the party with us. I planned to choose a good time to express my feelings and I was very happy because Le also had same of those feelings. I knew right then that I had found someone incredible.
We slowly developed a deep love, and eventually we both knew it. It was so beautiful a feeling. Finally, Le and I officially live in together in the same house (43 Hanley Street, Avondale Heights, VIC 3034) in February 2020. We are living the best time of our life and we love this life, which we share. Her charms are beguiling and it is because of them that I have started loving Le a thousand folds more. Since being together, we usually go to shopping together and eating together. Normally, I am the one who cleans the house and Le is the one who cooks, but sometime we love to enjoy doing together. Unfortunately, we really want to travel somewhere together, but it is impossible at the moment due to Covid19. Thus, almost the time we enjoy to stay at home or just hang around the area and take photos with family members. My mother and her father have been also in Melbourne when our relationship became official. The parents are very happy and we were many times having dinner together and took many photos. We have a lot of supports from our parents, so we have a plan to buy a house in next year when we get married.
After coming back to Vietnam, my mother sent to me amount of money as 700,000 dollars to support our plan to buy a house in next year. However, the money were sent to my sister’s account, who is Tuyet Ngan Lam because I and Le are still waiting for permanent resident visa (PR), so my mother could not send a big amount of money to my account or Le’s account. Thus, my sister will keep that money for us until we get the PR. She just sent to our joint bank account 200,000 dollar to make the deposit for the house after that. During that time, we had a look many properties in Avondale Heights area because Le and I want to live near my sister, so we can visit her and the baby easily. We used to go for inspection the house at 3 Browning Crescent, Avondale Heights, 3034 Victoria and we were very happy to offer this house. Then, my sister tried to offer this house 1,500,000 dollars with the condition that Nien Lam and My Du will be nominees of the property at the settlement day. Unfortunately, at the end of the day, the owner changed his mind and he took the property down from the market. Our plan to buy a house was affected by the pandemic as stage 4 of lockdown in Melbourne because we could not go for inspections at the movement. After that, we continued to go for inspection at 24 Clarendon Street, Avondale Heights Vic 3034, but we saw it not suitable for us. We keep looking for the houses on realestate.com.au almost every day.
In addition, we got another important plan next year, which is our marriage. We planned to get marriage at 24 April 2021 and it is also my 30th birthday as well. I hope that there will no more lock down at that time, so our parents from Vietnam can come and enjoy our wedding. After getting marriage and having our first property, as the discussion between Le and I, if I can get the agreement from my ex-wife, I want to sponsor my son to Australia and if we can buy the house in Avondale Heights, I plan for my son to study at Avondale Primary School. I will take care my son very carefully to let him become a good citizen in the future.
One of the great memories since being together was my birthday on 24th April 2020, Le surprised me with a special dinner. This time was very romantic with birthday cake and my favorite dishes. She said that because of Covid19, so we just could enjoy the birthday at home. However, with me, I saw she put so much effort and time to prepare for my birthday, so no matter eating at home or luxury restaurant, I was very happy about this. We love, respect, and care about each other than oneself. We finally registered our relationship under the VIC state laws. Each morning, I wake up and thank God that Le has been a part of my life. I just cannot find the words to tell Le how happy I am that we met and got together. I promise that I will always love my partner and keep her in my heart. We will love each other no matter where life ends up taking us.
…
Ms Du’s statement indicates the following:
…
We have known each other since 2016 though mutual friends. Not until February 2020 has our relationship become official.
I can still clearly remember the first time I met Dieu Nien at the StarBucks coffee in Melbourne CBD. My friend introduced me to Dieu Nien as he was a nice guy. We started talking to each other. After that, Dieu Nien invited me to watch a movie called “Zootopia” in Hoyts Melbourne Central and we even had dinner at Shanghai Street Restaurant before we headed home.
Since then, we started to talk to each other more through Facebook. As we were both studying at that time, especially when Dieu Nien was approaching his final year of Master of Commerce; therefore, we did not meet each other after that time. After finishing his study in 2016, Dieu Nien came back to Vietnam. We were still friends through Facebook, liking each other’s photos even when he was in Vietnam. Not until October 2019 did I come back to Vietnam to visit my family and I met Dieu Nien in a coffee shop in Ho Chi Minh city. It was when I realized I had feelings for Dieu Nien. Dieu Nien was really nice, gentle and caring. We shared all ups and downs in our life for the last few years, about why Dieu Nien came back to Vietnam to open his own business. I was really excited when Dieu Nien decided to come back to Australia for another study in December 2019.
After Dieu Nien came back to Australia, we spent more time with each other. We often go shopping and enjoy dinner together 3 or 4 times a week. During last Christmas, Dieu Nien and I really had good time together in Highpoint Shopping Centre along with my brother and my friend. Therefore, Dieu Nien introduced me to his family and invited me for dinner at his house on Christmas eve. I got so nervous at first. However, his family was so nice to me and I felt like I was part of the family as well. I often talks to my friend about Dieu Nien. They were all saying Dieu Nien and I are looking great together. Especially, Dieu Nien invited me for dinner at his aunt's house and we expressed our feelings on that day, I finally knew that we were meant to be.
Our relationship has become official since the 9th February 2020 and we decided to move in and live under the same roof at 43 Hanley Street, Avondale Heights VIC 3034. Since I moved in, I often help out Dieu Nien’s sister with cooking and looking after her baby. Nien is in charge of cleaning the house and gardening. I can feel a cosy family life when living with them. Dieu Nien’s mother and my father were also in Melbourne to celebrate our relationship. Our family is really happy and wishes us well. Due to COVID-19, Dieu Nien and I are not allowed to travel far away so we spend most of our time at home cooking, watching TV, or go shopping on weekends. Dieu Nien likes going to the gym on a daily basis so I often buy him protein drinks as gifts. To express his feelings for me, Nien often drops me off and picks me up from work given my busy nursing schedule.
On Dieu Nien’s birthday, as we could not dine in restaurants, I surprised him by making a homemade birthday cake and his favourite dishes. It was the first time I made the birthday cake so I put my whole time and effort into this. Dieu Nien was so happy and he told me that it was the most delicious cake that he had ever eaten. He also said that his birthday this year was even more meaningful and delightful as he had me by his side from then on.
One of our great memories since being together was the day Dieu Nien took me to see the sunrise at Altona Beach in Melbourne. I was burnt out from work and just casually told Dieu Nien that I love to go to the nearby beach. However, Nien took my words to his heart and prepared a little surprise for me. He drove me to Altona Beach and watched the sunrise and prepared small lunch boxes for both of us. Above all, I can strongly feel his effort putting into this and making me happy. His charm and his caring make me fall for him even more and more every single day. After that day, we have been discussing buying a house and planning to get married next year. I commit that our relationship is genuine as we finally registered our relationship under VIC Laws. I truly believe that our relationship will develop further and we will love each other endlessly.
Please consider my case and grant us the visa so that I can stay with my partner in Australia.
…
In her statutory declaration, Ms Tuyet Nhu Do states that she has known the applicant since August 2018 and confirms her own knowledge of the relationship set out by the applicant and Ms Du. She confirms that they moved in together in Avondale Heights in February 2020 and states that she has spent time their socialising with them.
In her statutory declaration, Ms Tuyet Ngan Lam confirms that she is the applicant’s older sister, and that she is very close to him. She confirms that her brother lives with her at her address in Avondale Heights, and that in February 2020, Ms Du moved in to the residence and became part of the family as the applicant’s partner. Ms Lam confirms both the parents of the applicant and Ms Du approve of the relationship, and that the applicant and Ms Du hope to marry in the next year and to purchase their own property nearby in Avondale Heights. Ms Lam confirms that the applicant supports Ms Du with her nursing work, which is stressful due to COVID19, that they both undertake housework, and that Ms Du helps Ms Lam take care of her baby.
In her statutory declaration, Ms Thi My Tran confirms that she is the applicant’s aunt in Australia and has seen his relationship with Ms Du begin and develop to the extent that they began living together with the applicant’s sister and her family in February 2020. She reiterates that Ms Du is now considered a member of the applicant’s family by the rest of the applicant’s family as well as the applicant.
The matter was constituted to a Tribunal Member on 27 April 2023. On 8 June 2023, the Tribunal wrote to the applicant via his agent to invite him, via his agent to invite him, pursuant to s.359(2) to provide updated and current information to establish that he was in a de facto relationship with Ms Du, and thus a member of her family unit for the purposes of cl.190.311. The Tribunal noted that the relevant legislation required the Tribunal to take into account factors such as:
·the financial aspects of their relationship (including any joint ownership of assets, any joint liabilities, the extent to which they had pooled your resources, any legal obligations they owed to each other, the basis of sharing any day to day household expenses);
·the nature of their household (including care of any children, living arrangements, shared housework responsibilities);
·the social aspects of their relationship (whether they were known to others as a de facto couple, any joint social activities they undertook); and
·the nature of their commitment to each other (including the duration of their relationship, including how long they had lived together, and whether they saw the relationship as a long term one).
The Tribunal requested that the applicant provide this information by 23 June 2023.
On 23 June 2023, the Tribunal received the following information from the applicant and his agent:
·joint bank statement for the period 17 February 2023 to 1 April 2023;
·joint bank statement for the period of 1 April 2023 and 30 May 2023;
·statutory declaration of the applicant dated 20 April 2023;
·statutory declaration of Le Uyen My Du dated 20 April 2023;
·joint car insurance policy dated 20 February 2023;
·joint Costco membership dated 26 March 2023;
·recent employment payslips of Le Uyen My Du, March to April 2023;
·photographs of the couple together, at a BBQ With friends in 2023, and at a Citizenship Ceremony.
The contents of the applicant’s statutory declaration are as follows:
…
I and Le Uyen My Du are husband and wife. We have lived together since February 2020. Our lives are full of happiness because we love, share and respect each other. We share household chores in every day life. For example, I do laundry, vacuum the floor and wash the car. She does cooking and washes dishes. Especially we are all enjoy to play with the babies, who are my nephews.
We are always together in shopping, parties and travelling. Our lastest travelling was Vietnam trip to visit the families at Tet Holiday 2023. It is a wonderful trip because it was reunion of both families. We also very lucky that we got a strong support from our parents. Sometimes, I feel a bit hard in life because of the troubles with my visa. Fortunately, Le is always beside me and comfort me. She said to me that ‘I will follow and live with you no matter where we are in the future.’ Thus, every time I feel down and troubled, I just think of my wife to ease my soul. I think that is the power of love and I am sure that I will always love Le unconditionally and wholeheartedly for the rest of my life. Like any other young couples, we had our ups and downs but we have managed our family together as a happy family. I am more than lucky to have found such a lovely partner like Le, I would not trade this relationship for any other things in life.
We also have plan to own our first property, so we are saving every week earning to our joint bank account, so I think it is will be our big motivation now. It is absolute joy to think of the future home that we will be creating together. We hope that we will be having a big family when our children are running around the house. Our relationship is further strengthened with support from both families. Le is respected and loved by my family members and vice versa. I enjoy the comfort of the supportive family relationship.
We respectfully seek the favourable decision on my application so we can fully enjoy our lives. Our relationship has withstood the test of time and that we hope we can be forever with each other in Australia. Together we work hard, build our Australia dream home. We hope we will be saving enough to purchase our home and enjoy more trips together. I confirm that I love Le and we are in a genuine relationship with plans for our future today.
…

The contents of Ms Du’s statutory declaration are as follows:
…
[The applicant] and I were married in June 2021. However, we have lived together as partners since February 2020. I feel very cozy and happy when living with my husband. Outside of working hours, we always be together at all times. [The applicant] is a perfect husband because he loves spending time with me, willing to teach me what he knows, always laughs when I am around him and worries about me.
Our relationship is further cemented in Covid times. It was the tough time with me as a nurse. I have worked as a front line and faced with a lot of Covid cases every day. Thus, I was worried a lot for my health and it might also affect to my husband’s health. My husband always stands beside me and gives me unconditional support. He said that ‘if you got positive with Covid, I’ll kiss you until I got positive too and we will quarantine together.’ I know that his is the man who I want to live for rest of my life. Life was difficult mentally and physically during Covid, but those days made me realised that I have found the right husband. We cared for each other during those difficult days. When we look, we thought that we have gone through a milestone in our relationship. We know that we belong to each other in this life.
We just had time to visit our parents in Vietnam at Luna New Year 2023 and I see that my parents-in-law love me so much and my parents also love [the applicant] a lot. I know that we got a strong support from our parents. We are more than luck to have full support from both families. In term of household arrangements, we do not have our duties in detail for each person, we support and do whatever possible for each other. While I am busy at work, [the applicant] would take care of household duties, and in return I would cook good food for [him] on the weekend when I am off work. I would not ask for more from this relationship, I hope that I will be with [him] for the rest of my life.
The only thing that I am still worry about is my husband visa. I know that he also feels stress sometimes about this but I always beside him and motivate him. I hope everything would be fine in the future. It has been years that we are together. I think it says everything about our relationship. I hope that the … Tribunal considers my husband’s application and make a finding in our favour. I have fully committed to a married relationship.
…
On 25 June 2023, the applicant and his agent provided additional information, being:
·statements from Thi Mai Dang (the applicant’s mother), dated 24 April 2023, and Thi Tuyet Le (Ms Du’s mother), dated 26 March 2023 (together with certified English translations); and
·statutory declarations of Chi Col Luong and Jenny Tran (mutual friends of the applicant and Ms Du), both dated 22 June 2023.
The applicant’s and Ms Du’s mothers confirm the relationship history provided by the applicant and Ms Du, including the support by both families for the relationship, and the recent visit to Vietnam by the applicant and Ms Du to see their families.
In their statutory declarations, Chi Col Luong and Jenny Tran confirm that they were originally friends of the applicant and got to know Ms Du when she began a relationship with him, and that they have socialised and/or travelled with the couple over the years and know them as a committed couple.
On 28 June 2023, the applicant provided a copy of a marriage certificate, indicating that he and Ms Du were married in Melbourne on 21 June 2021, and that one of the witnesses was Chi Col Luong.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF LAW, CLAIMS AND EVIDENCE
The issue in this review is whether the applicant is a member of the family unit of the primary visa applicant, Ms Le Uyen My Du, and therefore satisfies cl 190.311.
Section 5(1) of the Act provides that ‘member of the family unit’ of a person has the meaning given by the Migration Regulations 1994 (the Regulations). Regulation 1.03 provides ‘member of the family unit’ has the meaning set out in reg 1.12. The definition in reg 1.12 applies for the purposes of both the Act and the Regulations.
Regulation 1.12(2) provides that a person is a member of the family unit of another person (the family head) if the person is:
·the spouse or de facto partner of the family head;
·a child or step-child of the family head or their spouse or de facto who is not engaged, or has a spouse or de facto partner and has not turned 18 or, if aged between 18 and 22 years of age is dependent on the family head (or partner), or if 23 years of age or older is wholly or substantially reliant on the family head (or partner) because they are incapacitated for work due to loss of bodily or mental functions;
·a dependent child of a dependent child of the family head or of their spouse or de facto partner (grandchild).
In this instance, the applicant originally claimed to be the de facto partner of the primary visa applicant, Ms Du, and has now provided evidence that he and Ms Du are validly married. Given this development, the Tribunal has assessed him against the criteria for a spouse, rather than a de facto partner.
A person is a ‘spouse’ if they are in a married relationship with the family head. ‘Spouse’ is defined by s 5F the Act, which provides that:
·they are married to each other under a marriage that is valid for the purposes of this Act;
·the couple must have a mutual commitment to a shared life as a married couple to the exclusion of all others;
·their relationship is genuine and continuing; and
·that the couple live together, or do not live separately and apart on a permanent basis.
When considering whether the above requirements in s 5F are satisfied and the applicant is the spouse of the family head, the Tribunal may consider any of the circumstances outlined in reg 1.15A of the Regulations. These circumstances are:
·the financial aspects of the relationship;
·the nature of the household;
·the social aspects of the relationship; and
·the nature of the persons’ commitment to each other.
The Tribunal is satisfied, from its review of the Department file, that the applicant provided a copy of a relationship certificate issued by the Victorian government on 28 May 2020 indicating that he and Ms Du were in a de facto relationship. He also provided a range of other documents to demonstrate that he and Ms Du were in a genuine and continuing de facto relationship.
The delegate assessed the applicant’s relationship with Ms Du as follows:
…
[In response to a Department request] the following items were provided:
·Various photographs showing home and outdoor activities
·Joint utility bills dated 10 July 2020 and 18 August 2020
·Email regarding online purchases for the applicants with invoice and delivery docket for
period 11 March 2020, 02 June 2020, 08 June 2020, 08 June 2020 , 19 July 2020, 09
August 2020
·Joint bank statement for periods 01 May 2020 to 30 June 2020, 01 July 2020 to 28
August 2020
·Rent receipts for room rent from 15 February 2020 to 15 July 2020
A third request was sent on 11 September 2020 for further evidence of relationship in the
form of statements from the applicants, parents, family members, work colleagues or friends
in regards to the de facto relationship. The applicant was provided with 28 days to respond.
To date, the Department has not received response to our correspondence of 11 September
2020.
I have assessed whether the applicant, Dieu Nien Lam and the primary applicant, Le Uyen
My Du, are de facto partners in accordance with Section 5CB(2). I have assessed the
relationship against the matters listed in Regulation 1.09A to determine whether a de facto
relationship exists.
I accept that the applicant and the primary applicant have obtained a Certificate of
Relationship issued by the state government of Victoria dated 28 May 2020. I note this
certificate is dated one month after the date of invitation to apply for the visa. I acknowledge
this relationship is recognised under Australian Law, however, in assessing the relationship I
have placed more weight on the relationship as a whole rather than one single aspect, such
as the Relationship Certificate.
In assessing the financial aspects of relationship, I considered the following factors: the joint
ownership of assets, any joint liabilities, the extent to which both applicants have pooled their
financial resources, any legal obligations each party has to the other and the general sharing
of daily household expenses.
The joint bank statements spanning 29 February 2020 to 28 August 2020 show expenses and deposits in the form of savings. This is a short length of time and does not comprehensively demonstrate financial resources have been pooled and
that day to day living expenses are shared. I have considered the car insurance policy for the
period commencing February 2020. There is no evidence of any legal obligation between the
two parties nor any evidence of the joint ownership of any assets. Consequently, I am not
satisfied that the financial aspects of the relationship have been sufficiently established.
I also examined the joint lease agreement dated 15 February 2020 for the residential
property at 43 Hanley Street, Avondale Height VIC 3034. The contract states the rent
payment cycle is monthly at $600 payable on the 15th of every month from 15 February
2020 to 14 February 2021. It does state other information such as the type of space, mode of
payment and accountabilities of each party such as payment of utility bills. More specifically,
this contract does not match the rent receipt which specify "room rent" as opposed to rent of
the actual full property. In examining the details of the receipts, it is uncertain whether those
payments were made by the applicants. I note the mode of payment was not stipulated in the
lease agreement. Further, the receipts which specify "room rent payment” do not correlate
with the residential joint utility bills dated 18 April 2020, 19 June 2020, 10 July 2020, 19 July 2020 and 18 August 2020.
As the applicant has not offered any clarification with regard to these discrepancies between the receipts for room payment, property lease agreement and residential utility bills, I have not placed any great weight on these items in my assessment of
the relationship.
In assessing the social aspects of the relationship, I have considered the social interactions, the way the couple represent their relationship to others, and the level of recognition of the relationship by friends and family, as a reasonable test of the genuineness of a relationship.
I acknowledge the provision of social photographs showing some social interaction with friend or relatives. There is evidence before me of social interaction between the applicant and primary applicant at home and outdoors. However, I am unable to determine, from the
evidence and information before me, how the applicant and primary applicant represent their relationship to others nor the level of recognition of the relationship by family and friends.
I note that the applicant was provided with a number of opportunities to provide further evidence of the relationship and, in particular, that a third request was sent on 11 September 2020 specifically for evidence in the form of statements from the applicants, parents, family members, work colleagues or friends . No response was received to the Department's request of 11 September 2020. I am not satisfied the applicant has sufficiently supported their claim of a relationship with the primary applicant in terms of the social aspects of that relationship.
In assessing the nature of the household, I have considered the domestic living arrangements, such as shared living spaces and daily routine, as a reasonable test of whether the applicant and primary applicant live together permanently. There are various photographs showing the applicants jointly undertaking home duties, outdoor activities and a birthday celebration. There are also bank statements and utility bills to substantiate claims of shared living arrangements. Although the documentation shows both were residing at the same address, this evidence spans quite a limited period. I also taken into consideration the various online orders, invoices and online purchases from March 2020 to August 2020 and parcel delivery dockets issued separately to the applicant and primary applicant. I note this evidence relates to personal use and does not constitute joint purchases. The date the de facto relationship began was 09 February 2020 and a copy of a certificate of relationship dated 28 May 2020 was provided. The applicants' responses on the Forms 80, along with information provided with the application and the bank statements confirm the applicant and the primary applicant have resided at 43 Hanley Street, Avondale Heights, VIC 3034 since February 2020. No evidence has been provided to show the applicant and primary applicant share a daily routine. Consequently, I am only somewhat satisfied that the applicant and primary applicant have established a joint household, share the responsibilities of a household and live together permanently.
In assessing the nature of the applicant and primary applicant 's commitment to each other, I have considered the circumstances of their meeting, relationship development, length of time they have lived together, the degree of companionship and emotional support that they draw from each other and whether they see the relationship as a long-term one. Despite three requests from the Department, the applicant has not provided statements or affidavits from parents or family members, statutory declarations from work colleagues or friends to support their claim of a commitment to each other. I am not satisfied that the applicant and primary applicant have openly introduced themselves as a couple and that their de facto relationship has been recognised by a wider community. There is no information before me regarding the circumstances of their meeting, the development of their relationship nor the degree of degree of companionship and emotional support that the parties draw from each other. Other than the provision of relationship certificate, I am unable to establish that they see the relationship as a long-term one. I am not satisfied the applicant has sufficiently supported their claim of a relationship with the primary applicant in terms of the nature of their commitment to one another.
In summary, there is insufficient evidence of the nature of the relationship and that the applicant and primary applicant present themselves as a de facto partners to the wider community or their family and friends. I find limited evidence has been provided to establish the financial aspects of the relationship and limited evidence that they share a household.
Based on the evidence provided and taking into account regulatory requirements and my concerns stated above, I am not satisfied the applicant's relationship with the primary applicant, Le Uyen My Du meets Regulation 1.15A. Accordingly, the applicant is not
considered a member of the family unit of the primary applicant as per Regulation 1.12.
Therefore, I find that the applicant does not meet clause 190.311.
…
The Tribunal has had the benefit of receiving additional information from the applicant and Ms Du, which significantly supplements the information that was available to the delegate at the time of the primary decision in October 2020. It further notes that the applicant and Ms Du have now been in a relationship for over 3 years and were validly married in June 2021, 2 years ago.
The Tribunal has considered this information in relation to the factors set out in r.1.15A and s.5F.
In relation to the financial aspects of the relationship, the Tribunal has reviewed joint bank account statements provided by the applicant and Ms Du for the period March 2023 to April 2023. The applicants have also provided evidence that their joint address continues to be the one in Avondale Heights advised to the Department in 2020, which they share with the applicant’s older sister and her young family. While the applicant and Ms Du have not provided evidence of substantial joint assets (such as property, shares or the like), the Tribunal considers that this is not unusual for a relatively young couple who hold or held temporary visas. The financial arrangements that they do have are in joint names, and are jointly operated (their bank account, car insurance policy on which both are listed, and their Costco membership on which they are both listed). The parties have also indicated that they are planning to purchase a property together in the near future, and that the majority of funds for this are currently held by the applicant’s sister in her Australian bank account.
In relation to the nature of the household, the Tribunal is satisfied that the applicant and Ms Du live in the same rental premises with the applicant’s older sister and her young family. It is evident from their joint bank statements that it is used for purchases by both of them, and that they both regularly contribute $600 each to increase their savings. The applicant and Ms Du have provided detailed statements indicating how they share household tasks between each other, taking account of the fact that they are flexible about who does what. The Tribunal is satisfied that they have divided up their household duties to reflect their capacities and interests. The Tribunal also gives weight to the fact that the couple also assist the applicant’s older sister with her young children and that they invite friends to socialise at their home (photos of which were also provided). This was confirmed by statements from the applicant’s older sister and aunt, and by mutual friends. The Tribunal is satisfied that the couple has a joint commitment to each other in the way in which they participate in the household.
In relation to the social aspects of the relationship, the applicants have provided recent evidence from their respective mothers, the applicant’s sister and aunt, and several mutual friends, recognising them as a couple. They have also provided photographs of themselves with friends and/or family, and with each other at various locations, from 2020 to date. The Tribunal is satisfied that they present themselves, and are recognised as, a committed couple in public and to their friends and family.
Similarly, in relation to the nature of the persons’ commitment to each other, the applicants have provided detailed statements about their relationship from its inception in 2016 to the current time (mid-2023). The statements cover their initial meeting in Australia, their reconnection in Vietnam and the applicant’s relocation to Australia again, followed by their decision to live together in February 2020, their marriage in June 2021, and the practical aspects of their living arrangements in Australia, as well as their emotional commitment to each other. Moreover, the parties have now been living together for over 3 years and married for 2 years; further, there is no evidence before the Tribunal to suggest that they are not still living together and/or not committed to their long term spouse relationship. Their most recent statements indicate that they are planning to buy a house in the near future, and after that, start a family.
On balance, the Tribunal is satisfied from the updated evidence that the couple have a mutual commitment to a shared life as a married couple to the exclusion of all others, and that their relationship is genuine and continuing, and that the couple live together or do not live separately and apart on a permanent basis, as per s.5F.

Accordingly, the Tribunal is satisfied that the applicant is the spouse of the family head and cl 190.311 is met.
DECISION
The Tribunal remits the application for a Skilled Nominated (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a 190 - Skilled - Nominated visa:
·cl 190.311 of Schedule 2 to the Migration Regulations 1994.
Alison Mercer
Member
1.12     Member of the family unit
(1)This regulation has effect for the purposes of the definition of member of the family unit in subsection 5(1) of the Act.
General rule
(2)A person is a member of the family unit of another person (the family head) if the person is:
(a)     a spouse or de facto partner of the family head; or
(b)     a child or step-child of the family head or of a spouse or de facto partner of the family head (other than a child or step-child who is engaged to be married or has a spouse or de factor partner) and:
(i)has not turned 18; or
(ii)has turned 18, but has not turned 23 and is dependent on the family head or on the spouse or de facto partner of the family head; or
(iii)has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or
(c)      is a dependent child of a person who meets the conditions in (b).
This subregulation has effect subject to the later subregulations of this regulation.
…

[2023] AATA 2363

28 June 2023

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