LE (Migration)

[2022] AATA 1283

LE (Migration) [2022] AATA 1283 (22 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MINH CHANH LE

REPRESENTATIVE:  Ms KIM PHAM (MARN: 1387806)

CASE NUMBER:  1830430

HOME AFFAIRS REFERENCE(S):          BCC2017/3039214

MEMBER:Brian Camilleri

DATE:22 April 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

· cl 820.211 of Schedule 2 to the Regulations

· cl 801.221of Schedule 2 to the Regulations

Statement made on 22 April 2022 at 3:06pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and long standing relationship – sponsorship limitation requirement – sponsorship application less than five years since a sponsorship permission – financial support for family – joint travel – compelling reasons – children born of the relationship – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.03, 1.15, 1.20

CASES

He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 23 August 2017 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2) (c) or any alternative provisos within regulation 820.211 because amongst other matters the delegate did not consider the relationship was long standing. The delegates decision was made on 8 October 2018 over 3 years and 5 months ago.

4. The applicant appeared before the Tribunal on 18 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor Son Tra Pham Truong. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant was in a long-standing relationship with the sponsor and whether the application was affected by the fact that 5 years had not elapsed from a previous visa application in respect of another sponsorship.

   Whether the parties are in a spouse or de facto relationship

7. Clauses 820.211 and 820.221 require that at the time the visa application was made, and at the time of this decision, the 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 applicant is the spouse of the sponsor who is an Australian citizen. They met in Australia in 2016 and were married in Vietnam on 10 August 2017.

8. ‘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 parties’ 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?

9. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The sponsor and the primary visa applicant were married in Vietnam on 10 August 2017. 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).

   Are the other requirements for a spouse relationship met?

   ·As to the financial aspects of their relationship the sponsor has been supported since 2017 by the applicant as the mother of their children and she has been involved in the upbringing of the family’s two small children the youngest of which is just a little over two years old. The sponsor only recently started part-time work at a beautician and nail shop on a part time basis (since 7 February 2022). The primary visa applicant has working rights and supports the sponsor and their children from his employment and occupation as a supervisor in a technology enterprise (Smartstream Technology).

   ·The applicant and sponsor have lived together since before their wedding on 10 August 2017 and have not separated. Their first child as born on 23 January 2017 and their second child was born on 1 February 2020. The sponsor and the primary visa applicant continue to support their family.

   ·As to the social aspects of their relationship it is evident that they have the support of both their families, and they have returned twice to Vietnam since they met on one occasion to get married with their families present and on the next occasion to celebrate New Year.

   ·It is evident that the applicant and sponsor are very committed, now having had two children in just over 5 years. The sponsor has provided an impassioned letter explaining the relationship with her husband, the primary visa applicant and their mutual feelings for each other. There is no evidence before the Tribunal to suggest that the relationship is not genuine or not long lasting.

   ·There are no other relevant circumstances of the relationship which is outlined below. The Tribunal has no evidence before it to suggest they are not wholly committed to one another and the mutual bringing of their children.

10. On the basis of the above the Tribunal is satisfied that the requirements of s 5F (2) are met at both at the time the visa application was made and the time of this decision. The applicant meets cl 820.211 (2)(a) and cl 820.221 (1)(a).

    Is the applicant sponsored?

11. Clause 820.211 requires at the time of application; the applicant meets one of several alternative sub criteria. These include 820.211 (2)(c) which requires that the applicant was, at the time of application, sponsored by the sponsor, where such person has turned 18; or where they have not, by the sponsor’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in reg 1.03 of the Regulations).

12. At the time of decision, the applicant must continue to be sponsored by the sponsor, and the sponsorship must have been approved by the Minister and be still in force. Exceptions apply in certain circumstances where the sponsor has died, or family violence has occurred, or a child is involved but these issues are not applicable here. For visa applications made on or after 18 November 2016, the sponsor must also have consented for the Department to disclose to each applicant any conviction for a relevant offence, unless the conviction has been quashed or otherwise nullified, or where the sponsor has been pardoned with the effect that he or she is taken never to have been convicted of the offence: cl 820.221.  There are no such issues in the present case.

13. Approval of sponsorship is subject to limitations contained in reg 1.20J of the Regulations which sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship, and in reg 1.20KA which sets a limit on the period before which certain Parent visa holders can sponsor another person for a Partner visa. There are further limits imposed by reg 1.20KB in relation to sponsors charged with, or convicted of, certain offences where the visa application was made on or after 27 March 2010, and reg 1.20KC for sponsors convicted of a relevant offence who have a significant criminal record in relation to the relevant offence where the visa application was made on or after 18 November 2016. There are no such issues in the present case save the time that has elapsed between sponsorships.

14. The Tribunal finds that the time of application criterion are met.

    (a)The sponsor is now aged 30 years of age and the applicant, her husband is now aged 32 years of age. The sponsor is an Australian resident.

    (b)Notwithstanding the fact that the sponsor had been granted the relevant permission as the spouse of a previous sponsor on the sponsorship application of 29 April 2013 which was granted on 23 October 2013 and notwithstanding that the decision of the delegate of 8 October 2018 which rejected the submission of 20 June 2018 by the sponsor that the compelling reasons were present to justify the visa being granted, the Tribunal finds:

    (i)  The sponsor and the applicant as at the date of the Tribunal’s decision have been living together as husband and wife continuously since before their marriage in Vietnam on 10 August 2017. There is no evidence to the contrary.

    (ii) The evidence is that the sponsor has been supported by the applicant who has also supported their two children both born in Australia. Their first child as born on 23 January 2017 and their second child was born on 1 February 2020 which leads to the inescapable conclusion that this is a long-standing relationship and now comprises a family of four persons. The Tribunal finds there are compelling reasons to approve the sponsorship under the provisions of Regulation1.20J(2). The Tribunal considers that the criterion of 820.211(2)(c) are met and the sponsor satisfies paragraph (c) of subclause 820.211(2).

15. On the evidence before the Tribunal the requirements of cl 820.211 and cl 820.221 are met. 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 820 visa.

    DECISION

16. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·cl 820.211 of Schedule 2 to the Regulations

    ·cl 801.221 of Schedule 2 to the Regulations

    Brian Camilleri
    Member

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

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

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

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

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

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

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

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

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

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

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

    (ii)      any joint liabilities; and

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

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

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

    (b)the nature of the household, including:

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

    (ii)      the living arrangements of the persons; and

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

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

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

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

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

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

    (i)       the duration of the relationship; and

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

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

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

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