Lam (Migration)

[2022] AATA 2919

Lam (Migration) [2022] AATA 2919 (11 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi My Nhien Lam

VISA APPLICANT:  Mr Man Tsiu Tang

REPRESENTATIVE:  Mr Michael Cai (MARN: 1799864)

CASE NUMBER:  1829873

DIBP REFERENCE(S):  BCC2017/4506631

MEMBER:Deputy President Justin Owen

DATE:11 July 2022

PLACE OF DECISION:  Sydney

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 of Schedule 2 to the Regulations

·cl. 309.221 of Schedule 2 to the Regulations

Statement made on 11 July 2022 at 9:35am

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – residing together in Vietnam on occasions – foreign resident registrations – multiple statutory declarations regarding social recognition – length of the relationship – familiarity with each other’s activities – decision under review remitted    

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 309.211, 309.221; 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 Immigration on 26 September 2018 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 17 November 2017 on the basis of his relationship with his 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. 309.221 because the delegate was not satisfied that the visa applicant and the review applicant were genuine spouses or de facto partners, as defined in s. 5F and s. 5CB of the Act.  

4. The review applicant appeared before the Tribunal on 9 June 2022 via videoconference from Queensland to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant Mr Man Tsiu Tang via teleconference.   

5. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing via videoconference.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the visa applicant is in a spousal relationship with the sponsor and review applicant as defined by cl. 309.211(2) and cl. 309.221.

8. The Tribunal has taken into account all the evidence in the Departmental file BCC2017/4506631, the Tribunal file, and the oral evidence given by the review applicant and the visa applicant at the Tribunal’s hearing.

   Whether the parties are in a spouse or de facto relationship

9. 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 visa 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 visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

10. ‘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 and review applicant’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 parties validly married?

11. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal has had regard to a certified copy of the parties’ Socialist Republic of Vietnam Marriage Certificate, which according to the document, was registered at the Duc Truong District People’s Committee of Lam Dong Province on 21 September 2017, signed and authorised by Chairman Vo Van Phuong.  On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s. 5F(2)(a).

    What is the background of this case based on all the evidence before the Tribunal?

12. The visa applicant lodged a valid combined visa application for a Partner (Provisional) (Class UF) (Subclass 309) visa on 17 November 2017 on the grounds of being in a spousal relationship with an Australian citizen, eligible sponsor Ms Thi Nhien Lam, who lodged a sponsorship in support of the application.  The review applicant originally migrated to Australia from Vietnam on 24 November 2012 as the holder of a Child (Subclass 1010) visa.  The review applicant and the visa applicant claim to have been introduced to each other in late 2016 through the visa applicant’s sister who worked with the review applicant at a nail salon.  The parties claim to have commenced contact with each other via social media and other forms of electronic and telephonic communication.  It is claimed they struck up an immediate and close relationship.  On 20 March 2017, the review applicant travelled to Vietnam to meet the visa applicant.  The parties met at the airport, with the review applicant travelling with the visa applicant’s sister.  Both claim to have never been in a relationship previously.  It is claimed their relationship developed quickly whilst the parties were together in Vietnam.  The review applicant returned to Australia whilst the relationship, it is claimed, continued to prosper.  The parents of the review applicant and the visa applicant met in-person and remotely in mid-2017 after the visa applicant formally proposed marriage to the review applicant. In August 2017 the review applicant returned to Vietnam to marry the visa applicant.  The parties’ marriage took place on 31 August 2017 before 650 people, with the review applicant remaining in Vietnam with the visa applicant at his address until 23 September 2017.  The marriage was registered with the Vietnamese authorities on 21 September 2017. The review applicant then returned to Australia on 26 September 2017. 

13. The visa applicant had his visa application refused on 26 September 2018. The review applicant travelled to Vietnam in January 2019, April 2019 and July 2019, the parties claim, so she could reside with the visa applicant. The parties claim the closure of international borders in early 2020 due to the COVID-19 pandemic precluded any further visits. The review applicant states that she continues to work as a nail technician on a full-time basis whilst the visa applicant stated he continues to assist run his family grocery shop.  They claim to be in continual contact and have provided considerable evidence of their ongoing communication between 2017 and the present day.              

    Are the other requirements for a spouse relationship met?

14. In reaching its decision, the Tribunal has had regard to the evidence submitted to the delegate with the primary application, the delegate’s decision the applicant provided to the Tribunal, as well as oral and written evidence submitted to the Tribunal.  The Tribunal notes that there was only limited evidence of the spousal relationship before the delegate.  After undertaking outreach to the applicant in 2021, the Tribunal has had the benefit of considerably more documentary evidence, as well as the parties’ extensive oral testimony and the detailed testimony of the witnesses.

15. The Tribunal must consider all the circumstances of the relationship (including the matters specified in reg. 1.15A) in determining whether the parties are in a “married relationship” as defined by s. 5F(2).

    Financial aspects of the relationship

16. In respect of the financial aspects of the relationship between the visa applicant and review applicant, the Tribunal has considered the joint ownership of real estate or other major assets; joint liabilities; the extent of any pooling of financial resources; any legal obligations owed to the other party; and any sharing of day-to-day expenses.

17. The visa applicant and review applicant have no joint ownership of real estate or other major assets.  They have no joint liabilities.  In response to the Tribunal’s questions, the parties have confirmed they do not have a joint bank account and have not been pooling their financial resources.  There is no evidence of any legal obligations the parties owe to each other.  The parties claim they share household expenses when together but there is little evidence of such before the Tribunal. 

18. The parties explained that each is currently in gainful employment.  The need to transfer funds back and forth therefore to assist with matters such as living expenses does not arise. 

19. On the evidence before it, the Tribunal is not satisfied that the parties have combined their financial affairs.  The Tribunal notes however that the parties have lived in separate countries since their marriage, and were further impacted by separation during the lengthy COVID-19 international border shutdown.  Given the limitations such circumstances have imposed upon the parties, the Tribunal gives the financial aspects of the relationship little weight in its assessment of all the circumstances of the relationship. 

    Nature of the household

20. The Tribunal has considered the nature of the parties’ household, including any joint responsibility for the care and support of children; the parties’ living arrangements; and any sharing of housework.

21. Given the parties have resided in separate countries since their marriage in 2017, the Tribunal has given the nature of the parties’ household limited weight in its assessment. 

22. The review applicant and visa applicant have no children.  Subsequently there is no joint responsibility for the care and support of children.

23. In relation to their living arrangements, the visa applicant and review applicant claim to have resided together on several occasions whilst the review applicant was visiting Vietnam in 2017 and 2019, whilst they have also provided evidence that they resided together whilst holidaying in 2019 together in Thailand. 

24. The Tribunal discussed the longest period of time the parties have spent living with each other, that the review applicant and visa applicant both stated has been when the review applicant has visited Vietnam and the parties have lived in the visa applicant’s family home.  The Tribunal notes the evidence provided that the review applicant was registered as living at the visa applicant’s home in Vietnam.  The visa applicant has submitted to the Tribunal certified copies of Vietnamese Residence Registration Cards for Foreigners for the periods 4 January 2019 to 9 January 2019; 15 January 2019 to 21 January 2019; 20 April 2019 to 23 April 2019; 5 July 2019 to 7 July 2019; and 8 July 2019 to 15 July 2019.  These registrations, in conjunction with the previously submitted registration documents from 2017, satisfy the Tribunal that the review applicant was visiting and residing at the visa applicant’s property, or the parties were otherwise visiting the review applicant’s relatives in Vietnam as claimed.  The Tribunal notes that each of the foreign resident registrations states that the purpose of the review applicant’s visa was to visit her husband and her husband’s family.  The Tribunal, supported by the consistent testimony of the parties in their oral testimony, is satisfied that the review applicant and visa applicant established temporary living arrangements together whilst the review applicant has visited the visa applicant in Vietnam, as well as in Thailand. 

25. The Tribunal discussed the sharing of housework with the parties when they have cohabitated.  They each claimed the duties and responsibilities were shared.    

26. Based upon the totality of the admittedly limited evidence before it given the review applicant’s and visa applicant’s separate residences, the Tribunal is satisfied that the parties did reside together as they have claimed on occasions since 2017 when the review applicant has departed Australia to see the visa applicant in Vietnam and Thailand.

27. On the evidence before it, the Tribunal is satisfied that the parties’ household together since 2017 is how they have claimed in their oral testimony and in their written submissions, and is commensurate to that of a couple in a genuine and ongoing spousal relationship that have lived in separate countries during this period.   Given the limited opportunities the review applicant and visa applicant have had to establish their own household, the Tribunal gives the nature of the household only limited weight in its assessment of all the circumstances of the relationship.   

    Social aspects of the relationship

28. The Tribunal has considered the social aspects of the relationship between the visa applicant and the review applicant, including whether they 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 they plan and undertake joint social activities.

29. The Tribunal has considered whether the visa applicant and the review applicant represent themselves to other people as being married to each other.  The review applicant stated that she and the visa applicant have openly presented themselves as a married couple for many years.  The fact that the relationship is so widely recognised by each of their families, and supported by a wedding attended by 650 people, has been held as evidence of this recognition.  The Tribunal considers the fact that the families of both the review applicant and the visa applicant attended the wedding speaks to how the parties represent themselves as married.  The visa applicant has provided a range of photographs of himself and the review applicant with family and friends in a range of venues both in Vietnam and Thailand.    The voluminous number of statutory declarations provided by family members and friends also attest to the parties representing themselves as married.  The Tribunal also notes the Vietnamese government registration documents that suggest both the review applicant and visa applicant registered to stay with and visit the review applicant’s relatives.  On the basis of the evidence before it, the Tribunal is satisfied that the visa applicant and the review applicant represent themselves as married to each other.      

30. The Tribunal has considered the opinion of friends and acquaintances about the nature of the relationship.  The visa applicant has provided 18 detailed statutory declarations that each speaks to the signatories’ knowledge of the relationship and its genuineness.  These signed declarations are each from the review applicant’s and visa applicant’s respective mothers, as well as from the review applicant’s father, sister and the visa applicant’s brother, multiple uncles, friends and his sister-in-law.  The Tribunal has reviewed the statements and accepts the veracity of the statements.  The Tribunal is satisfied that the visa applicant’s and review applicant’s friends, acquaintances and family view the claimed relationship as genuine and continuing.  The Tribunal has also given some weight to the extensive photographs from multiple occasions of the visa applicant and review applicant together both in Vietnam and abroad with friends and family.   The Tribunal is satisfied that, in the opinion of the parties’ family and friends, the review applicant and visa applicant are in a genuine and ongoing spousal relationship.     

31. The Tribunal noted the delegate’s concerns as to the visa applicant’s knowledge of the review applicant’s family.  The Tribunal notes it is over three and a half years since the delegate’s refusal.  The Tribunal questioned the visa applicant about various aspects of the review applicant’s family, and his familiarity with various members and past events.  The Tribunal found both the visa applicant and the review applicant to be well-informed and spontaneous when questioned about each other’s family.  The Tribunal is satisfied they each are genuinely engaged with the other’s family and have been for some years.    

32. The Tribunal has also considered the basis on which the visa applicant and review applicant plan and undertake joint social activities.  The review applicant explained that she and the visa applicant enjoy socialising, dining out at restaurants and meeting with friends.  The parties discussed their love of music and watching films. The Tribunal, noting of course the limited opportunity the review applicant and visa applicant have been able to spend together, is satisfied that the visa applicant and review applicant plan and undertake joint social activities as claimed. 

33. The Tribunal accepts the visa applicant’s and review applicant’s claims as to the social aspects of their relationship.  The Tribunal is satisfied that the parties’ relationship is commensurate to that of a couple in a genuine and ongoing spousal relationship, albeit in an unenviable situation where they have been separated on an ongoing basis now for multiple years.  The Tribunal is satisfied that the visa applicant and review applicant represent themselves as being in a spousal relationship.  The Tribunal furthermore is satisfied that the parties represent themselves to others as being in a family unit. 

    Nature of persons’ commitment to each other           

34. The Tribunal has considered the duration of the relationship; the length of time the visa applicant and review applicant have lived together; the degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

35. In relation to the duration of the relationship, the Tribunal notes the parties claim to have been in a relationship now for some five years. Their five-year wedding anniversary is only two months away.  The parties each claim their relationship, despite its long-distance challenges, has continued successfully without any major disputes during this time.  The visa applicant has submitted voluminous transcripts of messages sent between the parties between 2017 and the present day.  The Tribunal, noting much of the correspondence was not translated, requested a selection to be translated which was agreed to.  The Tribunal is satisfied, on the basis of all the evidence before it, that the visa applicant and review applicant have been in continual daily contact via electronic communication since 2017.      

36. The Tribunal has considered the length of time the visa applicant and review applicant have lived together.  The Tribunal notes the time has been particularly limited given the length of their stated relationship.  The Tribunal does not place any adverse weight on this fact however, given the considerable impediments the visa applicant and review applicant have faced in finding the opportunities to spend time residing together.  The Tribunal notes that, post the delegate’s refusal, the review applicant travelled on three separate occasions to Vietnam in 2019 to spend time with her husband, the visa applicant.  The evidence before the Tribunal, through statements, photographs, and documentation supplied to and from the Vietnamese authorities, satisfies the Tribunal the visa applicant and review applicant were residing together during these periods as claimed.  The Tribunal accepts that the arrival of the COVID-19 pandemic in early 2020 and the subsequent closure of international borders precluded the parties from spending further time together until very recently.  Now, they claim they are awaiting the finalisation of the Tribunal’s review process, whilst also making plans to reunite later in the year.

1. The Tribunal has considered the degree of companionship and emotional support the parties draw from each other; and whether they see the relationship as long-term.

2. The Tribunal found the visa applicant and the review applicant to have a level of comfortable familiarity with each other.  Each was very knowledgeable about the other’s family; the review applicant speaking about how she has met all the visa applicant’s family.  Each discussed how the visa applicant enjoys an excellent relationship with the review applicant’s mother, who is divorced and remains in Vietnam whilst the review applicant lives with her father and younger sister in Queensland.  The review applicant and visa applicant were able to inform the Tribunal about their experiences with each other’s families: discussions which the Tribunal considered credible and genuine. 

3. The review applicant noted her father had flown to Vietnam to attend her wedding whilst her mother was also in attendance.  Both the visa applicant and review applicant discussed how they had travelled in Vietnam in August and September 2017 to meet and see the review applicant’s family members in Vietnam that did not attend the wedding.  The Tribunal found the evidence of the parties consistent. 

4. The companionship and support, as well as the parties’ belief they are in a long-term relationship, in the Tribunal’s opinion was also evident in the knowledge the parties have of each other’s daily lives.  They were familiar with each other’s employment, hours of work, pay and savings.  When the Tribunal questioned the parties about activities and gifts to celebrate past birthdays or Christmas; each other’s friends; and each other’s health over the past five years, both were spontaneous in their responses and gave answers that satisfied the Tribunal of their strong support for each other and the companionship they provide each other. 

5. The Tribunal noted the delegate’s concerns that the parties had not met each other in person in 2018: when the visa was refused.  The parties explained that the review applicant at that time was saving money and working considerably long hours.  The visa applicant stated the review applicant was also preparing for her Australian citizenship.  The Tribunal’s concerns about the lack of physical contact between the parties in 2018 however is outweighed by the considerable evidence of the ongoing and regular contact between the parties since 2019 especially.  The Tribunal does not place any adverse weight on the failure of the parties to meet together in person in 2018.     

6. The Tribunal notes the lack of corroborative evidence the visa applicant and review applicant supplied the delegate in making their application in 2017.  In such circumstances, it was entirely understandable that the delegate refused the application given the failure to supply satisfactory evidence as plainly stated and requested at the time by the Department.  The Tribunal’s review process has allowed the review applicant and the visa applicant the opportunity to put forth further evidence and information – as well as their oral testimony – as to the genuineness of their spousal relationship.  In the circumstances of this case, the review process has allowed the review applicant and visa applicant to submit substantially more valuable and voluminous evidence – for instance, 18 statutory declarations from their immediate relatives from both families – in support of their case than was originally provided to the delegate.  The Tribunal has also given positive weight to the oral testimony of the review applicant especially.  Her testimony in particular the Tribunal considered to be thoughtful, considered and, most importantly, reliable when discussing her relationship with the visa applicant.

7. The Tribunal is satisfied from all the documentary and oral evidence from the review applicant and the visa applicant that they draw emotional support and companionship from each other, and that they have a good understanding of each other’s lives.

8. The Tribunal finds from all the evidence the parties are married to each other under a marriage which is valid for the purposes of the Act, and therefore at the time of application and time of decision, the parties meet s. 5F(2)(a).

9. The Tribunal is satisfied that at the time of application and the time of decision, the review applicant and the visa applicant have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal is satisfied that the relationship is genuine and continuing. They therefore meet the requirements of s. 5F(2)(b) and s. 5F(2)(c) for a married relationship.

10. Additionally, the Tribunal is satisfied that at the time of application and time of decision, the visa applicant and the review applicant do not live separately and apart on a permanent basis. Accordingly, they meet the requirements of s. 5F(2)(d) for a married relationship.

11. The Tribunal therefore finds that at the time of the visa application, the visa applicant was the spouse, within the meaning of s. 5F, of the review applicant, who is an Australian citizen, and meets the requirements of cl. 309.211(2) of Schedule 2 to the Regulations. Therefore, the visa applicant meets cl. 309.211.

12. Further, the Tribunal finds that at the time of the Tribunal’s decision, the visa applicant continues to be the review applicant’s spouse, and so continues to meet cl. 309.211, and therefore meets the requirements of cl. 309.221 of Schedule 2.

13. 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.

14. 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

15. 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 of Schedule 2 to the Regulations

    ·cl. 309.221 of Schedule 2 to the Regulations

    Justin Owen
    Deputy President

    
    

    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).