Le (Migration)

[2019] AATA 4636

Le (Migration) [2019] AATA 4636 (14 August 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mrs Thi Thuy Vy Le

CASE NUMBER:  1807559

DIBP REFERENCE(S):  BCC2014/160775

MEMBER:  P. Maishman

DATE AND TIME OF

ORAL DECISION AND REASONS:          14 August 2019 at 2:11 pm (WA time)

DATE OF WRITTEN RECORD:               16 September 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the decision under review with the direction that the applicant meets cl.801.221(2).

Statement made on 16 September 2019 at 9:47am

CATCHWORDS

MIGRATION – Partner (Residence) (Class BS) – Subclass 801 (Spouse) – genuine relationship – evidence provided – marriage certificate – birth certificate – mutual commitment – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 5F
Migration Regulations 1994 (Cth), Schedule 2 cl 801.221(2)

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 8 March 2018 to refuse to grant the visa applicant a Partner (Residence) (Class BS) Subclass 801 visa under the Migration Act 1958 (the Act).

1. At the hearing on 14 August 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. There is a two stage process for a permanent visa to be granted. The first, a provisional 820 visa is granted and then, usually after two years, the residence visa 801 may be granted if you satisfy the primary criteria that your relationships is genuine and continuing and you continue to be the spouse of your sponsoring partner.

1. You applied for a partner visa on 17 January 2014 on the basis of your relationship with Mr Ngo who is an Australian citizen. You were granted the temporary 820 visa on 30 October 2014. The criteria for the grant of the 801 permanent residence visa are set out in part 801 of Schedule 2 to the Migration Regulations of 1994.

1. On 8 March 2018 a delegate for the Minister for the Department of Home Affairs decided to refuse to grant you a (Partner) 801 visa. In summary, the delegate was not satisfied that you were in a genuine and continuing relationship with Mr Ngo and so was not satisfied that at the time of its decision you were the spouse of your sponsoring partner, Mr Ngo.

1. You applied for a review of the delegate’s decision to this Tribunal on 22 March 2018. You provided the Tribunal a copy of the delegate’s decision record with your application for review.  The decision record outlines the delegate’s reasons for its decision.  The Tribunal had before it a copy of the Department’s file containing the visa application and the evidence referred to in the delegate’s decision record. You gave the Tribunal additional evidence including a copy of your joint account statement for the period 19 January to 16 March 2018, a flight itinerary for travel for you and Mr Ngo to Vietnam between 18 February 2017 and 15 March 2017, a letter of support from Mr Alaa Abuothman dated 19 August 2018, a number of photographs, a birth certificate for your daughter born February 2016, a copy of your marriage certificate, home loan approval in joint names and a copy of your First Home Owners Grant application.

1. At the hearing today you also provided me with a copy of your birth certificates, or the birth certificates for your children, Lucas and Liam showing they were both born in January 2019.

1. You appeared before the Tribunal today to give evidence and present arguments. The Tribunal also heard evidence from Mr Ngo, your sponsor. You and Mr Ngo gave evidence separately at the hearing and you gave me evidence about your relationship history, the development of your current relationship, knowledge of each other’s backgrounds and family relationships, the financial, social and household aspects of your relationship and the nature of your commitment to one another.

1. Your responses were consistent, indicating you provided authentic responses from your own perspectives and knowledge. The Tribunal finds that you and Mr Ngo are credible and honest witnesses and accepts your oral evidence on that basis.

1. The issue for me to decide is whether at the time of my decision you continue to be the spouse of Mr Ngo, who is your sponsor. Relevantly to this matter, cl.801.221(2)(c) requires that you are the spouse of the sponsoring partner, who must be an Australian citizen or

permanent resident who was specified in the related temporary visa application as your spouse.

1. “Spouse” is defined in s.5F of the Act and provides that a person is the spouse of another person if you are in a married relationship.  Persons in a married relationship must be married to each other under a marriage that is valid.  You have provided a copy of a marriage certificate showing you and Mr Ngo were married in January 2014.   There is nothing before the Tribunal to suggest that your marriage is not valid. The Tribunal finds that you and Mr Ngo are married to each other under a marriage that is valid for the purposes of the Act.

1. The Tribunal must be satisfied that you have a mutual commitment to a shared live as a married couple to the exclusion of all others, that your relationship is genuine and continuing and that you either live together or do not live separately and apart on a permanent basis.

1. In forming an opinion about these matters I have to have regard to all the circumstances of your relationship. This includes the evidence of your financial and social aspects and the nature of your household and your commitment to each other along with any other relevant information. These requirements are set out in Regulation 1.15(a) of the Regulations.

1. The Department’s file contains a copy of the sponsor form completed by Mr Ngo. The Tribunal is satisfied that Mr Ngo was specified as your sponsor in the related temporary 820 visa application and continues to be your sponsor at the time of this decision.

1. Now, I have considered the financial circumstances of your relationship. You and Mr Ngo have a joint mortgage over your home that you are building. You applied for a First Home Owners Grant together as spouses. You both demonstrate a good knowledge of the family business and how your accounts work. You mostly use cash for your spending and your joint account is used for on line spending and bill payments.

1. The Tribunal finds that you jointly own real estate and have a joint liability in your mortgage. Neither you or Mr Ngo owe any other legal obligation in respect to each other and the Tribunal accept your and Mr Ngo’s oral testimony that you pool your financial resources. The Tribunal is satisfied that the financial aspects of your and Mr Ngo’s relationship are indicative of a couple in a married relationship.

1. The Tribunal considered the nature of your household. You are both responsible for your daughter and son’s care and support. The Tribunal accepts your evidence about your sleeping arrangements and the responsibility for housework and shopping. The Tribunal finds that the nature of your household is indicative of a couple in a married relationship.

1. The Tribunal has considered the social aspects of your relationship. You provided a number of photographs showing you and Mr Ngo with various family members and at various social occasions. You gave evidence that your friends and families consider you a married couple and that you present in public as a married couple. Mr Abuothman provided a letter on 19 August 2018 to confirm that he knows you are a couple.

1. The Tribunal finds that you and Mr Ngo represent yourself to other people as being married to each other. Your friends and acquaintances and family are of the opinion that the nature of your relationship is that of a married couple and you plan and undertake social activities together.

1. The Tribunal is satisfied that the social aspects of your and Mr Ngo’s relationship is indicative of that of a married relationship. The Tribunal accepts your evidence about how your relationship formed and how it developed.  Your witness attests to the strength of your

relationship and the commitment to one another, your friends and family consider you to be a committed couple.

1. You and Mr Ngo gave consistent evidence about your future plans in respect of building a house and travelling to Vietnam in the near future. You consider your relationship to be long term.  The Tribunal finds that you and Mr Ngo have been in a married relationship since 2014 and have lived together since then. You care for each other and provide companionship and emotional support and consider your relationship as long term.

1. The Tribunal considers the nature of your and Mr Ngo’s commitment to each other to be indicative of a couple in a marriage relationship.

1. In considering all the matters contained in the regulations and the evidence presented to the Tribunal, the Tribunal finds that you are married to Mr Ngo in a marriage that is valid for the purposes of the Migration Act, you have a mutual commitment to a shared life as a married couple to the exclusion of all others and the relationship between you and Mr Ngo is genuine and continuing and you live together.

1. On the basis of the above the Tribunal is satisfied that the requirements of s.5F are met at the time of this decision and therefore you meet cl.801.221(2). Given those findings, the appropriate course is to remit your application for the visa to the Minister to consider the remaining criteria for a Subclass 801 visa.

DECISION

1. The Tribunal remits the decision under review with the direction that the applicant meets cl.801.221(2).

P. Maishman Member