LE (Migration)

[2022] AATA 2780

LE (Migration) [2022] AATA 2780 (5 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Ngoc Anh LE

VISA APPLICANT:  Mr Dao Xuan LAM

REPRESENTATIVE:  Mr Garry Frederick Howard (MARN: 9804095)

CASE NUMBER:  1834682

DIBP REFERENCE(S):  BCC2018/1057152

MEMBER:Meena Sripathy

DATE:5 August 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 05 August 2022 at 4:51pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – validly married in home country – limited household, financial and social aspects of relationship while living in different countries – five visits before travel restrictions – nature of commitment – visa history – applicant’s period as unlawful non-citizen and sponsor’s previous unsuccessful application with another partner – passage of time and updated information and medical reports provided – high-risk pregnancies – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65, 360(2)(a)
Migration Regulations 1994 (Cth), r 1.15A(2), Schedule 2, cls 309.211, 309.221

CASE
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 13 November 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 6 March 2018 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.309.211 because the delegate was not satisfied the applicant and sponsor were in a genuine spousal relationship, having particular regard to the visa applicant’s previous adverse migration history in Australia. 

4. The sponsor applied for review of the decision to the Tribunal on 26 November 2018.

5. On 22 June 2022 the review applicant requested priority processing on the basis that she was currently pregnant for the second time, has a rare medical condition, recent history of still birth and limited family support in Australia and needs the support of the applicant during her pregnancy.  Support and medical letters were submitted in support of the application.

6. The application was granted priority on 29 June 2022. The matter was constituted to the present Tribunal on 13 July 2022. 

7. On 15 July 2022 the Tribunal wrote to the review applicant to invite updated submissions, information, and supporting evidence addressing the existence of a genuine and continuing spousal relationship.  A response and supporting documents was provided on 29 July 2022.

8. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

9. The issue in the present case is whether the visa applicant and review applicant are in a genuine spouse relationship within the meaning of that term in the Migration Act and Regulations at time of application and time of decision.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The visa applicant is a 36 year old Vietnamese national.   He has parents and one brother in Vietnam.  He is sponsored by the review applicant, who is a 35 year old Vietnamese born, Australian citizen.  She has parents and siblings in Vietnam and a sister in Australia. The parties indicate they first met in Canterbury, NSW in October 2016 and married in Vietnam on 19 December 2017. The visa applicant declared a previous marriage to Sandra Ly from 2012, that ended in divorce on 30 October 2017; and the review applicant was previously married from 2006, which ended in divorced on 30 July 2010. Neither had children from their previous relationships.

12. The following information was provided in the application regarding the circumstances of the relationship.  The visa applicant has not worked since returning from Australia to Vietnam in February 2017.  He helps his mother look after his ill father. The sponsor sends money to him every month. The parties lived together during the sponsor’s visit to Vietnam in December 2017.  In Australia she lives with her divorced sister and her family.  Statutory Declarations from the sponsor and Form 888s (from two long term friends of the sponsor) were submitted in support of the application. The sponsor became pregnant following her visit to Vietnam and the couple look forward to having a baby.

13. The sponsor’s Statutory Declaration dated 26 February 2018 describes the inception and development of the relationship from October 2016.  On 31 December 2016, following an evening out together the visa applicant was picked up by police and taken to Villawood detention centre (VIDC), where he remained for 6 weeks, until he departed to Vietnam.  She states that she visited him in VIDC every night for dinner and each Sunday when she was not working. Following his return to Vietnam they spoke daily by phone, and decided to marry some months later.  She travelled to Vietnam on 13 December 2017 and married on 19 December 2017.  They honeymooned in Cambodia and Dalat and she stayed with him and his family in Vietnam.  She became pregnant during this trip and they are happily expecting their first child and have plans to be together as a family.

14. The sponsor had a difficult pregnancy due to medical issues and the baby was delivered stillborn on 16 August 2018.  The visa applicant applied for an urgent visitor visa to travel to Australia for the delivery but was refused on 15 August 2018, despite a support letter from Liverpool Hospital. A copy of the birth certificate for the parties daughter is included in the Department file.

15. On 5 September 2018 the visa applicant and sponsor were interviewed in relation to this application, in person in Vietnam.  Notes of the interview on the Department file indicate that evidence submitted included visitor applications showing the sponsor visited the visa applicant in VIDC from 2 January to 12 February 2017, money transfers from sponsor to visa applicant n 2017 and from January to July 2018, photos of their deceased baby and birth certificate of the child listing them as parents, and evidence of online chat from March to August 2018.  The parties were interviewed separately and asked questions about their relationship. 

16. On 13 November 2018 the delegate refused the application.  The delegate was not convinced despite the circumstances of the pregnancy and recent death of their child, that they were in a genuine and continuing relationship due to the delegate’s overriding concerns about the visa applicant’s earlier period of unlawful stay in Australia and a previous unsuccessful partner visa application with a different partner.

    Evidence before the Tribunal

17. On 22 June 2022 the Tribunal received information, in the context of a priority processing request, that the review applicant was pregnant for a second time and has a high risk pregnancy, due to a rare health condition and history of still birth of her first child.   Supporting evidence from her treating doctors was provided, indicating her need for support from her husband during the pregnancy. The documents indicate an estimated due date for delivery of 27 November 2022.  The matter was granted priority on this basis.

18. As indicated above, in response to the Tribunal’s invitation on 15 July 2022 for updated submissions, information, and supporting evidence addressing the existence of a genuine and continuing spousal relationship, the following material was provided:

    ·Supporting letter from Migration Agent, Garry Howard, dated 29 July 2022, addressing relationship criteria.
     

    ·Liverpool Hospital letter dated 26 July 2022, detailing the review applicant's previous pregnancy in 2019, and confirms current high-risk pregnancy
     

    ·Liverpool Hospital letter dated 17 June 2022, supporting the visa applicant to come to Australia due to the review applicant's high risk pregnancy
     

    ·Statement from Mai Diep dated 21 July 2022, support letter from visa applicant's mother
     

    ·Multiple money transfers from review applicant to visa applicant between 30 March 2017 to 12 July 2022
     

    ·Multiple supermarket invoices between 23 July 2020 - 17 July 2022 from visa applicant to review applicant
     

    ·Call history records
     

    ·Photos of the review applicant and visa applicant together and with family/friends
     

    ·Multiple flight tickets/receipts for review applicant and visa applicant over 2019 - 2022
     

    ·Hotel receipt from Vietnam in August 2019
     

    ·Application for certification on temporary residence in Vietnam for the review applicant
     

    ·Whatsapp text conversation between visa applicant and review applicant

19. Departmental movement records before the Tribunal indicate the review applicant was outside Australia from January – March 2019, August -September 2019 and from February – to April 2022. 

    Whether the parties are in a spouse or de facto relationship

20. The issue in the present case is whether the applicant is the spouse of the sponsoring partner at time of application and continues to be spouse  at time of decision.

21. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

22. ‘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).

    Are the parties validly married?

23. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. On the evidence, of the marriage certificate, and documents confirming their previous divorces, the Tribunal is satsified 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).

    Are the other requirements for a spouse relationship met?

24. In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP[2017] FCAFC 206.

25. At the outset the Tribunal observes that the delegate’s decision in this matter seemed harsh, lacked compassion given the circumstances, and was inconsistent with the evidence available at that time. The visa applicant and sponsor had recently experienced the tragedy of the death of their baby. The sponsor gave birth to her still born daughter without the support of her husband, due to the refusal of an urgent visitor visa application, and the parties endured their tragedy separately and apart. Soon after, the sponsor travelled to Vietnam and in September 2018 participated in an interview with the delegate.  There is little reference made to their recent experience during the interviews, and the significance of it is somewhat surprisingly absent from the delegate’s consideration. The notes of the interviews disclose no clearly adverse information in their responses to questions about the relationship and the refusal decision appears to be based solely on concerns arising due to the visa applicant’s past adverse migration history in Australia.

26. Notwithstanding the above observations about the delegate’s decision, this review by the Tribunal is a de novo consideration of the application.  The Tribunal has before it, the benefit of the passage of a substantial period of time of almost 4 years, and accumulated new information and evidence in support of the relationship, including a second and current pregnancy.  The Tribunal places significant weight on this circumstance in particular, and on the volume of evidence now before in reaching its favourable conclusion on the relationship. 

27. The evidence and the Tribunal’s assessment is discussed below under the relevant headings of matters required to be considered under r.1.15A(2). 

    Financial aspects of the relationship

28. The Tribunal has considered and accepts that the parties are living in separate countries and have not lived together in the same country since their marriage.  Therefore it is not reasonable to expect that they would be able to demonstrate evidence of joint ownership of assets; joint liabilities; pooling of financial resources; or sharing of day-to-day household expenses.  While they claim they opened a bank account in Vietnam at the time of their marriage, there is no evidence that it was used on a regular basis. In submissions ot the Tribunal, they advise that this account was closed in July 2021.  Evidence of financial transfers by the review applicant to the sponsor was provided to the Department and evidence of further regular transfers since the delegate’s refusal decision up to July 2022 was provided to the Tribunal.

29. The Tribunal is satisfied that evidence of financial aspects of the relationship is consistent with the existence of a continuing spouse relationship.

    Nature of the household

30. As indicated previously, the Tribunal accepts that the couple has not lived together since marriage as they live in different countries.  The review applicant claims that she lives with the visa applicant at his family home, or on occasions with her parents, or in hotels each time she visits Vietnam, and has visited now on 5 occasions, most recently returning to Australia in April 2022. Evidence of certification of temporary residence, flights to Vietnam and photos of their time together in Vietnam has been submitted in support. The Tribunal accepts that as yet they have no children, having lost their first born who was still born.  The review applicant and visa applicant are now expecting a child, the review applicant having become pregnant during her last visit to Vietnam.

31. In light of their circumstances of living in different countries, the Tribunal is satisfied sufficient evidence has been provide to demonstrate the continuing relationship, including regular visits, subject to the travel restrictions between 2020 and 2022, and the circumstances of two pregnancies since the marriage.

    Social aspects of the relationship

32. Evidence has been provided that the couple present and are known to each other’s families and friends as a married couple, including statements from each of their parents and numerous photos showing the couple with others.  The support letters submitted from Liverpool Hospital indicates the review applicant has referred to the visa applicant as her current husband and seeks his support during the pregnancy.  The birth certificate for their first child names the visa applicant and review applicant as parents and their status as married. The review applicants multiple trips to Vietnam to visit the visa applicant supports the existence of the ongoing relationship.

33. In the circumstances of the case the Tribunal is satisfied that the social aspects of the relationship supports the existence of the relationship.

    Nature of persons' commitment to each other

34. The parties have known each other since 2016, and been married since December 2017, just over four and a half years now. While they have lived in separate countries for all of this period, the review applicant has made five visits since that time. She has been pregnant twice since their marriage, sadly losing their daughter who was stillborn. She is now pregnant again and, due to a rare health condition and her previous pregnancy experience, has a high risk pregnancy.  The Tribunal accepts the evidence, supported by the medical support letters and health documentation provided in the context of the priority request, that the review applicant has a compelling and urgent need for the visa applicant to be granted a visa so that he can support her through the remainder of her pregnancy and at the time of birth of their child.  Given the weight of evidence provided of their ongoing contact and the pregnancy there is no basis to believe the parties do not see their relationship as long term.

35. Having regard to all of the above, the Tribunal finds that the parties have a mutual commitment to shared life to the exclusion of others; are in a genuine and continuing relationship; and while they are presently living separately, it accepts they are not living separately and apart on a permanent basis and therefore the primary visa applicant meets the requirements of s 5F(2)(b)-(d).

36. 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.

37. Therefore the visa applicant meets cl.309.211 and cl.309.221.

38. 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.

    Recommendation the application be processed without delay upon remittal

39. Unfortunately the applicants in this matter have experienced substantial delay in the processing of their review application since the delegate’s refusal decision in November 2018. They have already experienced a significant trauma with the death of their first born and given the current circumstances of the review applicant’s high risk pregnancy, the Tribunal urges consideration be given to processing this application without further delay.

    DECISION

40. 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

    Meena Sripathy
    Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)       any joint ownership of real estate or other major assets; and

    (ii)      any joint liabilities; and

    (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)     the basis of any sharing of day‑to‑day household expenses; and

    (b)the nature of the household, including:

    (i)       any joint responsibility for the care and support of children; and

    (ii)      the living arrangements of the persons; and

    (iii)     any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)       whether the persons represent themselves to other people as being married to each other; and

    (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)     any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)       the duration of the relationship; and

    (ii)      the length of time during which the persons have lived together; and

    (iii)     the degree of companionship and emotional support that the persons draw from each other; and

    (iv)    whether the persons see the relationship as a long‑term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).