Le (Migration)

[2019] AATA 5417

Le (Migration) [2019] AATA 5417 (12 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Tran Quang Vu Le

VISA APPLICANTS:  Mrs Thi Khanh Huyen Nguyen
Ms Khanh An LE

CASE NUMBER:  1722172

DIBP REFERENCE(S):  OSF2016038584

MEMBER:Peter Smith

DATE:12 August 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the primary visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·     cl.309.211, cl.309.212, cl.309.213 of Schedule 2 to the Regulations; and

·     cl.309.221 and cl.309.222 of Schedule 2 to the Regulations; and

The secondary visa applicant meets;

·   cl.309.311 of Schedule 2 to the Regulations.

Statement made on 12 August 2019 at 11:28am

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine relationship – joint financial commitments and business plans – joint responsibility for the care and support of a child – traditional Vietnamese engagement party and wedding – review applicant’s visits to Vietnam – options considered for the secondary applicant’s schooling – decision under review remitted       

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 25
Migration Act 1958, ss 5, 12, 65, 359, 360, 363
Migration Regulations 1994, Schedule 2, cls 309.211-309.213, 309.222, 309.311; rr 1.05, 1.12, 1.15

CASES

He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS

THE APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration (the Minister) on 18 July 2017 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. Thi Khanh Huyen Nguyen (the visa primary applicant), a citizen of Vietnam, applied to the Minister on 5 October 2016 for the grant of a Partner (Provisional) (Class UF) visa and a Partner (Migrant) (Class BC) visa in which she claimed to be the spouse of an Australian permanent resident, namely the review applicant and her sponsor, Tran Quang Vu Le who on 18 September 2017 made an application pursuant to s.25 of the Administrative Appeals Tribunal Act 1975 (Cth) and s.347 of the Act for a review of the delegate’s decision.

3. Included on the visa application the primary visa applicant’s daughter, Khanh An LE (the secondary visa applicant), born 7 July 2011.  The basis of the application made by the secondary visa applicant is that she is a member of a family unit of the primary visa applicant who is also the primary visa applicant for a Partner (Provisional) (Class UF) visa.

4. The Migration Regulations 1994 (Cth) (the Regulations) provides that an application for a Partner (Provisional) (Class UF) visa is made at the same time and place as an application for a Partner (Migrant) (Class BC) visa. The application process involves two stages. If an applicant is granted a Partner (Provisional) (Class UF) visa, he or she will be granted a provisional or temporary visa to enter Australia for two years. At the end of the two year period, the relationship is reassessed, and if the Minister is satisfied that the relationship is, amongst other things, genuine and continuing, a permanent Partner (Migrant) (Class BC) visa will be granted.

5. At the time of visa application, Schedule 1 to the Regulations provided for a particular class of visa known as the Class UF visa and contained one subclass: Subclass 309 (Partner (Provisional)).  At the time of visa application, Schedule 2 to the Regulations prescribed the criteria for the grant of a subclass 309 (Partner (Provisional)) visa. The criteria for this subclass of visa are set out in Part 309 of Schedule 2 to 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.

   The Minister’s delegate decided under s.65 of the Act to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa because the primary criteria for it prescribed in clause 309.211 and 309.221 of Schedule 2 to the Regulations had not been satisfied at the time of visa application and at the time of the delegate’s decision because of insufficient evidence.

   The Tribunal hearing

6. The application for review was heard by the Tribunal on 11 July 2019.  At the hearing the review applicant appeared with his authorised representative and authorised recipient, a registered migration agent (representative), and with the assistance of an interpreter in the English and Vietnamese languages, gave oral evidence and presented arguments in respect of his application.  The primary visa applicant, also with the assistance of the same interpreter gave oral evidence by telephone from Vietnam. 

7. Also at the hearing three witnesses appeared in person before the Tribunal and gave evidence in support of the application.

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

   QUESTION FOR THE TRIBUNAL TO DETERMINE

9. In the present case the question for the Tribunal to determine is whether the visa applicant is the spouse of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen, at the time of visa application and at the time of this decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. In conducting this review the Tribunal has had regard to the evidence on the file of the Department of Immigration and Border Protection (the Department) and the further information provided to the Tribunal by the review applicant and the parties and their witnesses’ oral evidence given at the hearing.

11. The Tribunal had before it a large volume of material that was not before the delegate when the original decision was made.

    Whether the parties are in a spouse or de facto relationship

12. 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 permanent resident.

13. Based on the information contained on the Department’s file the review applicant became an Australian permanent resident on 8 July 2012.  The Tribunal is therefore satisfied that the review applicant is at the time of visa application and at the time of this decision an Australian permanent resident.

14. ‘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’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.

    Are the parties validly married?

15. No claims of previous marriages are made by the review applicant.

16. The primary visa applicant claims one previous marriage which was solemnized in Vietnam on 10 December 2010 and ended in divorce on 17 June 2013.  This claim is supported by a sealed copy of a Divorce Agreement issued by the People’s District Court of Vietnam dated 17 June 2013 which confirms that the marriage between the primary visa applicant and her former husband ended in divorce on 17 June 2013.

17. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.  The parties claim to have married each other on 22 July 2016 at a traditional Vietnamese wedding ceremony held in Vietnam.  In support of this claim the parties rely on a sealed copy of a Certificate of Marriage dated 22 July 2016.  The Certificate, issued by the Socialist Republic of Vietnam, states that the parties were married to each other in Vietnam on 22 July 2016.

18. For the purpose of deciding whether a foreign marriage is to be recognised as valid for the purposes of the Act, s.12 of the Act provides that Part VA of the Marriage Act 1961 (Cth) (the Marriage Act) applies as if s.88E of the Marriage Act were omitted. Subject to certain exceptions not relevant to the present matter, foreign marriages recognised under local civil law in the country where they are solemnised will be recognised in Australia under Part VA of the Marriage Act. The exceptions relate to whether either party was already married, whether the parties were of marriageable age at the time of the marriage, whether the parties are within a prohibited relationship, whether the consent of each party was real consent, and whether the marriage is voidable under the local law.

19. Based on the evidence referred to above at para [18], the Tribunal is satisfied that the parties were, at the time of visa application and at the time of this decision, married to each other on 22 July 2016 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 spousal relationship met?

    The financial aspects of the parties’ relationship

20. This first factor I must consider under reg.1.15A of the Regulations is the financial aspects of the parties’ relationship.  In considering this factor, I must have regard to all of the circumstances of the parties’ relationship, including whether the parties have any joint ownership of real estate or other major assets, any joint liabilities of the parties, the extent of any pooling of financial resources, especially in relation to major financial commitments, whether one party in the relationship owes any legal obligation in respect of the other, and the basis of any sharing of day-to-day household expenses.

21. Both parties work and derive an income from their respective employment. 

22. The evidence before the Tribunal is that the parties do not jointly own any real estate or other major assets nor do the parties have any joint liabilities.  This is to be expected in the present case given that the parties live in different countries, have limited financial resources, and are young in age and have the ongoing parental obligations to the care and support of the secondary visa applicant. 

23. The parties however have been saving money for the purchase of a house and a bakery business.  The parties see these things as long term goals but nevertheless see them as attainable goals.  To ensure that the parties attain their long term goals the review applicant lives in cheap accommodation.  This enables him to save so that he can save money for the parties’ long term goals.  The visa applicants live with the primary visa applicant’s parents enabling her minimise living expenses in respect of the visa applicants.  The Tribunal is of the view that this is consistent with a genuine and continuing relationship.

24. There is evidence before the Tribunal that the review applicant does, from time to time, provide financial support to the visa applicants by sending them money to assist with their general living and day-to-day household expenses.  

25. There is little evidence before the Tribunal that the parties have pooled their financial resources, especially in relation to major financial commitments.   The Tribunal considers this not be a relevant factor given that the parties do not have any major financial resources.

26. There does not appear to be any evidence before the Tribunal that either party to the relationship owes any legal obligation in respect of the other however given the parties present circumstances the Tribunal gives this factor little weight.

27. There is evidence before the Tribunal that during periods of cohabitation the parties share in the day-to-day expenses associated with their household which also includes expenses related to the care and support of the secondary visa applicant.  The parties share in the household bills and the cost of food for the household.  Based on this evidence the Tribunal is satisfied that the parties share in day-to-day expenses associated with the household.

28. Having regard to all of the circumstances of the parties’ relationship the Tribunal does not place significant weight on this factor.

    The nature of the parties’ household  

29. The second factor the Tribunal must consider under reg.1.15A of the Regulations is the nature of the parties’ household.  In considering this factor, I must have regard to all of the circumstances of the parties’ relationship, including whether the parties have any joint responsibility for the care and support of children, the living arrangements of the parties, and any sharing of the responsibility for housework.

30. In the present case there is one minor child who requires care and support from the parties.  The secondary visa applicant is presently 8 years of age.  She lives with her mother and has done so since birth.  She does not appear to have a meaningful relationship with her biological father who has given his written consent for his daughter to move to Australia. 

31. There is evidence before the Tribunal that the secondary visa applicant’s father provides no care and support to her.  This includes no financial support.  The review applicant has played a father type role over the course of the parties’ relationship.  His family are also significantly involved in the secondary visa applicant’s life which in the Tribunal’s view is indicative of a genuine and continuing relationship between the parties. 

32. The parties told the Tribunal about the particular care and support arrangements they had proposed in respect of the secondary visa applicant.  The party’s proposals were to firstly find a larger rental property that would be conducive to raising a young girl, enrolling her in a school and providing general care and support to her that would be expected by parents with young children.  The review applicant has provided care and support to the secondary visa applicant when he visits the visa applicants in Vietnam.  He told the Tribunal that he plays with the secondary visa applicant, assists her with her homework and spends time with her in the park after school.

33. There is evidence that the review applicant and the secondary visa applicant have developed a strong bond over time.  The photographs and witness statements and the oral evidence given by the parties at the hearing support this claim.  In particular the evidence provided by the parties show the review applicant and his family spending time with the secondary visa applicant.  This evidence also shows the review applicant’s family spending time with the visa applicants and their family during periods when the review applicant is in Australia. The Tribunal is of the view that this is commensurate with a relationship that is genuine and continuing and therefore gives this significant weight in its consideration of this factor.

34. Based on the evidence the Tribunal is satisfied that the parties have joint responsibility for the care and support of children.

35. The review applicant has made a number of visits to Vietnam to spend time with the visa applicants however given that the parties live in separate households in different countries it is to be expected that the parties have not been able to establish a shared household in any substantial way.   The Tribunal therefore does not place too much weight on this factor.

36. The Tribunal received consistent oral evidence from the parties that during periods of cohabitation there is sharing between the parties as to housework including cleaning, washing, cooking and shopping at the markets.  Based on this evidence the Tribunal is satisfied that the parties share in the responsibility for the housework during periods of cohabitation.

37. On balance, having regard to all of the circumstances of the parties’ relationship the Tribunal is satisfied that the parties have, at the time of visa application and at the time of this decision, established this factor.

    The social aspects of the parties’ relationship

38. The third factor the Tribunal must consider under reg.1.15A of the Regulations is the social aspects of the parties’ relationship.  In considering this factor, I must have regard to all of the circumstances of the parties’ relationship, including whether the parties represent themselves to other people as being married to each other, the opinion of the persons' friends and acquaintances about the nature of the relationship, and the basis on which the parties plan and undertake joint social activities.

39. There is a substantial amount of information before the Tribunal in the form of witness statements and the oral evidence given by the party’s three witnesses that the parties represent themselves to others as being married to each other.  The Tribunal also been provided with extensive photographic evidence of the parties relationship including their traditional Vietnamese engagement party and wedding.  Based on this evidence the Tribunal is satisfied that the parties represent themselves to others as being married, and based on those representations the parties relationship is seen by others as being married to each other.

40. There are extensive photographs of the parties and others including maternal and paternal family members of the parties socialising together and of the parties socialising with the secondary visa applicant as a family unit.  In particular there is evidence of the parties out and about at markets and at the park spending time with the secondary visa applicant. Based on this evidence and the supporting oral evidence given by the parties and their witnesses the Tribunal is satisfied that the parties plan and undertake social activities together during periods of cohabitation.

41. On balance, having regard to all of the circumstances of the parties’ relationship the Tribunal is satisfied that the parties have, at the time of visa application and at the time of this decision, established this factor.

    The nature of the parties’ commitment to each other

42. The forth factor I must consider under reg.1.15A of the Regulations is the nature of the parties’ commitment to each other.  In considering this factor, I must have regard to all of the circumstances of the parties’ relationship, including the duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the persons draw from each other, and whether the persons see the relationship as a long-term one.

43. The parties have been in a relationship since August 2015.  The parties were, for the purposes of s.5F(a) of the Act, validly married to each other on 22 July 2016. 

44. The length of time during which the parties have lived together is limited to the few visits made by the review applicant since the inception of the parties’ relationship.  However this is to be expected in circumstances where the parties live in separate households in different countries.  The Tribunal therefore does not place significant weight on this factor. 

45. Although some of the documents provided to the Tribunal by the review applicant’s representative are not translated the Tribunal is satisfied after hearing from the parties that they have frequently over the course of their relationship stayed in touch with one another drawing emotional support and companionship from one another.  These communications also show the review applicant stays in touch with the secondary visa applicant.  The Tribunal considers this to be significant in its consideration of this factor.

1. Having heard from the parties and their witnesses the Tribunal is satisfied that the parties see their relationship to each other as long-term one.  The Tribunal considers their short and long term plans to be indicative of a genuine and continuing relationship.  In particular the parties have committed to short term plans by finding a bigger place for him and the visa applicants to live in.  The parties will continue to save money for a house and their own bakery business.   The parties have also considered options for the secondary visa applicant’s schooling by making enquiries with public schools and also some business courses for the primary visa applicant so that she can learn some skills running a business.

2. On balance, having regard to all of the circumstances of the parties’ relationship the Tribunal is satisfied that the parties have, at the time of visa application and at the time of this decision, established this factor.

   CONCLUSION

3. On the basis of the findings above, the Tribunal is satisfied that the requirements of s.5F(2) of the Act are met at the time of visa application and at the time of this decision.

4. Given the above findings, the Tribunal is satisfied that at the time of visa application and at the time of this decision the parties were in a genuine spousal relationship and therefore meets the requirements in cl.309.211(2) and cl.309.221.

5. There is no evidence before the Tribunal that the review applicant is prohibited from being the sponsor of the primary visa applicant.  The Tribunal is satisfied that the review applicant/sponsor was at the time of visa application and at the time of this decision an Australian permanent resident who had turned 18.  Therefore, the primary visa application meets cl.309.212, cl.309.213 and cl.309.222 of Sch 2 to the Regulations.

6. In relation to the secondary visa applicant, the Tribunal accepts that she is a dependent child (8 years of age) living at home with the primary visa applicant.  She is wholly dependent on the care and support of the parties and will be for some significant time.  Therefore, the secondary visa applicant is a member of the family unit as defined in reg.1.12 of the Regulations.  The Tribunal finds that the secondary visa applicant is dependent and therefore satisfies r.1.05A of the Regulations.

7. The Tribunal is satisfied that the secondary visa applicant is a member of the family unit of, and made a combined application with, the primary visa applicant who satisfies the primary criteria in subdivision 309.21.  Therefore, the secondary visa applicant meets the requirements of cl.309.311 of Schedule 2 to the Regulations.

8. The Tribunal has not made a finding on cl.309.321(a) because, at this time, the primary visa applicant is not the holder of a Subclass 309 visa.

9. Given these findings the Tribunal is satisfied that at the time the visa application was made and at the time of this decision the parties were in a spousal relationship.

10. Given the findings above, the appropriate course is to remit the application for the visas to the Minister to consider the remaining criteria for a Subclass 309 visa.

    DECISION

11. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the primary visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.211, cl.309.212, cl.309.213 of Schedule 2 to the Regulations; and

    ·  cl.309.221 and cl.309.222 of Schedule 2 to the Regulations; and

    The secondary visa applicant meets;

    ·  cl.309.311 of Schedule 2 to the Regulations.

    Peter Smith
    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).