Le (Migration)

[2019] AATA 3698

Le (Migration) [2019] AATA 3698 (5 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs DieuTo Tam Le

CASE NUMBER:  1732200

HOME AFFAIRS REFERENCE(S):           BCC2016/2051867

MEMBER:Grant Chapman

DATE:5 August 2019

PLACE OF DECISION:  Adelaide

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(2)(a) of Schedule 2 to the Regulations

·cl.820.221 of Schedule 2 to the Regulations

Statement made on 05 August 2019 at 7:12pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – sharing of day-to-day household expenses – living arrangements – sharing of responsibility for housework – duration of relationship – discussed and developed plans for future – credible witnesses – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 820.211, 820.221

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 and Border Protection to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, Dieu To Tam Le, applied for the visa on 15 March 2016 on the basis of her relationship with her sponsor, Ngoc Dung Mai. 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 (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)(a)because the evidence and information the applicant and sponsor have provided was not sufficient to demonstrate that they were in a genuine spousal relationship, as defined under section 5 of the Migration Act.

4. The applicant appeared before the Tribunal on 12 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Ngoc Dung Mai; the sponsor’s father, Canh Mai; and the sponsor’s aunt, Tuyet Thi Nguyen. The Tribunal Hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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 and her sponsor are in a spousal relationship, as defined by section 5F of the Migration Act.

7. In determining the applicant’s claims, the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of sensitivity to the circumstances and difficulties applicants may face before the Tribunal, related to their particular situation.

8. The applicant relies on written submissions and supporting evidence provided to the Tribunal and previously to the Department, together with oral evidence which the applicant, sponsor and witnesses gave at the Tribunal Hearing. The Tribunal found this evidence to be credible and persuasive, given without obfuscation or hesitation.

   Whether the parties are in a spouse or de facto relationship

9. Clauses 820.211(2)(a) 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 claims to be the spouse of the sponsor 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 parties’ 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?

11. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant and sponsor provided to the Tribunal a copy of a Commonwealth of Australia Certificate of Marriage confirming that their marriage was solemnised, according to Civil Rites, by authorised celebrant, Christopher Merrigan, on 10 June 2015, at the Births, Deaths and Marriages Registration Office, Adelaide, South Australia, in the presence of two witnesses. 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).

12. In examining the documentary evidence tendered and the oral evidence given by the applicant, sponsor and witnesses at the Tribunal Hearing, the Tribunal has considered all aspects of the relationship as described in paragraph 10 above.

13. The applicant lodged a valid application for a Partner (Temporary) (Class UK) (Subclass 820) visa and Partner (Residence) (Class BS) (Subclass 801) visa on 15 June 2016.h

    Are the other requirements for a spouse relationship met?

    Financial aspects of the relationship

14. Joint ownership of assets: There is no documentary evidence before the Tribunal to show that the applicant and sponsor have any joint assets, nor did they claim at the Tribunal Hearing to have any joint assets. The only reference to ownership of an asset was a claim by the sponsor that he owned a Nissan van. The Tribunal finds that there is no joint ownership of assets by the applicant and sponsor but given their relatively modest incomes gives this circumstance no weight in its Decision.

15. Joint liabilities:  There is no documentary evidence before the Tribunal to show that the applicant and sponsor have any joint liabilities, nor did they claim at the Tribunal Hearing to have any joint liabilities. The Tribunal finds that there are no joint liabilities shared by the applicant and sponsor but given their relatively modest incomes gives this circumstance no weight in its Decision.

16. Extent of pooling of financial resources: Apart from the claims of the applicant and sponsor about the informal arrangements regarding day-to-day living expenses described in paragraph18 below, there is no evidence before the Tribunal of any pooling of financial resources between them. They provided a letter from Mr Brian Moseley of the Commonwealth Bank, dated 1 July 2015, confirming an account in their joint names being in place on that date. However, they told the Tribunal Hearing that they had closed this account. They failed to provide to the Tribunal any bank statements relating to this account. The applicant provided to the Tribunal copies of bank statements from 2 November 2017 to 8 December 2017 for a Commonwealth Bank account in the name of the applicant which shows several wage deposits during this period and various payments attributable to one debit card, together with periodic ATM cash withdrawals. There are no transfers evident from this account to any other account. Similarly, the sponsor provided copies of bank statements from 18 August 2017 to 24 November 2017 for a Commonwealth Bank account in the name of the sponsor which shows deposits from Centrelink Newstart and payments attributable to one debit card, mostly for inexpensive online and PayPal purchases, together with petrol and periodic ATM cash withdrawals. There are no transfers evident from this account to any other account. The applicant told the Tribunal Hearing that the sponsor had a Bank SA account in which his Centrelink payments were deposited. However, no documentary evidence was provided of this account and as described above, a Commonwealth Bank account in his name was receiving his Centrelink payments in the latter part of 2017. The Tribunal notes that the applicant and sponsor gave no documentary evidence of their financial arrangements at the time of visa application. However, the Tribunal notes that in late October 2017 the Department requested the applicant to undertake a health check and provide an Australian National Police Certificate. The applicant provided to the Tribunal a copy of the Certificate dated 26 October 2017, which is the same date as a payment from the sponsor’s bank account to the Australian Federal Police via his debit card. Similarly, there is a payment to BUPA on 7 November 2017 identified as Medical Visa. The Tribunal finds that the sponsor paid for these expenses incurred as part of the applicant’s visa application and therefore, to a minor extent, there has been some pooling of financial resources. The Tribunal gives this circumstance some weight in its Decision.

17. Any legal obligations owed to the other party: There is no evidence before the Tribunal of any legal obligations owed by either party to the other, nor did the applicant or sponsor claim that there were any such obligations. When questioned on this circumstance at the Tribunal Hearing, as to why they had not made Wills or superannuation binding death benefit nominations, the applicant responded that, at their relatively young age they had never talked about Wills, while she had only just commenced full-time work and hadn’t considered the superannuation aspect. As a welfare recipient, occasionally working for modest income in his family’s bakery business, the sponsor did not have superannuation. The Tribunal finds that there are no legal obligations owed to each other by the parties but gives this circumstance no weight in its Decision.

18. Any sharing of day-to-day household expenses: The applicant’s bank statements, to which reference is made in paragraph 16 above, show regular payments via a debit card which the Tribunal accepts as being reasonably attributable to day-to-day living expenses, including payments to supermarkets and to other food vendors, petrol and some entertainment expenses. While there is no documentary evidence regarding for whom these purchases were made, the applicant told the Tribunal Hearing that during the time they lived together in rented accommodation she paid for the food they shared while the sponsor paid for the rent. She said that late in 2017, she and the sponsor moved in with the sponsor’s parents at their residence in Hanson Road, Woodville North, where they lived rent-free but paid $250 in cash per fortnight to cover food and other household expenses. The Tribunal notes that each of the food related purchases showing on the applicant’s bank statements from 2 November 2017 are relatively modest but also quite frequent, occurring several times per week. The Tribunal finds that they would be sufficient to sustain a couple. Also, the Tribunal notes that between 1 December 2017 and 8 December 2017, which is the last date on the statements provided, there are no expenses incurred for food. Although the evidence for this change in purchasing pattern covers only one week, given the frequency of food purchases during the previous month, the Tribunal finds this documentation to be consistent with the oral evidence given by the applicant regarding the sharing of household expenses, prior to and after, early December 2017. On this basis, finds the applicant’s evidence that there has been a sharing of day-to-day household expenses credible and gives this circumstance substantial weight in its Decision.

19. Financial aspects conclusion: The Tribunal places moderate weight on the cumulative evidence presented regarding the financial aspects of the relationship between the applicant and sponsor as demonstrating that the relationship is a mutual commitment to a shared life together to the exclusion of all others, being a genuine and continuing relationship and that they living together, or not separately and apart on a permanent basis.

    The nature of the household

20. Any joint responsibility for the care and support of children: The sponsor has a son Brandon, from what he described in a signed letter to the Department dated 23 November 2017, as a previous boyfriend/girlfriend but not de facto relationship. This child was aged 11 the time of visa application and is currently aged 14 but there is no evidence before the Tribunal that the sponsor has any maintenance responsibilities for the child. There is no other evidence before the Tribunal that the applicant or sponsor have any other children, either from previous relationships or the relationship which is the subject of this Decision. The Tribunal finds that there is no joint responsibility between the applicant and sponsor for the care and support of children but gives this circumstance no weight in its Decision.

21. The living arrangements of the applicant/sponsor: The applicant told the Tribunal Hearing that she met the sponsor in November 2014 when she was living in a share house in Belmont Terrace, Woodville Park, with a Vietnamese couple, who were friends of the sponsor, as well as his sister and brother-in-law and introduced the applicant to the sponsor when they all went out to dinner on one occasion. They exchanged telephone numbers and subsequently, the sponsor asked the applicant to go out with him. She said that the sponsor moved in to live with her at Woodville Park in April 2015. This is consistent with the sponsor’s Statutory Declaration dated 9 June 2016 which stated, at that time, that he and the applicant had been living together for 14 months. The applicant said that the living arrangements at Woodville Park were that they paid half of the $280 per week rent incurred by the Vietnamese couple with whom the house was being shared, that is $140, including a contribution towards utilities’ costs, which was paid by the sponsor in cash, while the applicant paid for their food, which was not shared with the other couple. A Form 888 Statutory Declaration by Thanh Si Nguyen, the male member of the above house sharing couple, dated 14 June 2016, states that the sponsor moved in with the applicant at Woodville Park in April 2015 and had continued to live there with her as at the date of the Form 888. A letter signed by the applicant’s father in Vietnam, with a certified English translation, states his knowledge that the applicant and sponsor decided to live together in April, 2015. The applicant told the Tribunal Hearing that early in 2017 she and the sponsor moved together to a granny flat at a property in Torrens Road, Croydon Park, which they rented from the Vietnamese owner. She said that they had found this property on Facebook and paid rental, including utilities, of $150 per week in cash. She said that they did not have any formal rental agreement with the owner. She said that the granny flat was separate from the main residence on the property and consisted of one bedroom, a living room, a kitchen and a bathroom. She told the Tribunal Hearing that, at the end of 2017, she and the sponsor moved again, to live in the sponsor’s parents’ house at Hanson Road, Woodville North, with his parents, where they have continued to live to the present. She said that the sponsor’s parents did not charge them any rent but that they contributed $250 per fortnight towards food and utilities. She said that this was a large house, with five bedrooms, a hobby room, a kitchen, a living room and a bathroom with a separate toilet. The Tribunal notes the absence of any documented evidence regarding the rental arrangements or rental payments for the several living arrangements described above. However, it notes also the detailed, credible descriptions given by the applicant of two of these residences and the Form 888 and letter supporting the applicant’s claim regarding the third residence. The Tribunal finds the claims of the applicant regarding her living arrangements with the sponsor credible and gives this circumstance substantial weight in its Decision.

22. Any sharing of responsibility for housework: The applicant told the Tribunal Hearing that she does the shopping for the household and does the washing up, while the sponsor does the cooking and they share cleaning responsibilities in the house shared with the sponsor’s parents. She said that the sponsor’s father is not very strong while his mother has dementia, so that the household responsibilities fall largely to her and the sponsor. The sponsor’s father told the Tribunal Hearing that the applicant looks after him and the sponsor’s mother. The Tribunal accepts the evidence of the applicant and finds that there is an appropriate sharing of responsibility for housework between her and the sponsor and gives this circumstance substantial weight in its Decision.

23. Household aspects conclusion: The Tribunal places substantial weight on the cumulative evidence presented regarding the nature of the household as being one which demonstrates the relationship between the applicant and sponsor as being a mutual commitment to a shared life to the exclusion of all others, being a genuine and continuing relationship and that they are living together, or not separately and apart on a permanent basis.

    The social aspects of the relationship

24. Whether the persons represent themselves to other people as being married to each other: The Form 888 to which reference is made in paragraph 21 above refers to the applicant and sponsor as a couple, while another Form 888 Statutory Declaration from Petros Nicholaidis, confirms that he was a witness at their wedding. While there is no documentary evidence, other than their Marriage Certificate, confirming they married to each other, the applicant and sponsor provided a number of photographs taken at their wedding and other photographs showing them in social situations with family and friends, as a couple. The Tribunal finds that the persons represent themselves to others as being married to each other and gives this circumstance some weight in its Decision.

25. The opinion of friends and acquaintances about the nature of the relationship: The Nicholaidis Form 888, to which reference is made in paragraph 24 above, states having known the sponsor since 1994 and the applicant since 2014 and of seeing them on most weekends since then.  It states the belief of its author that the relationship is genuine, that the applicant and sponsor are “meant for each other” and “show understanding towards each other.” The Nguyen Form 888 states having known the sponsor since 1995, the applicant since 2014, that they have lived together in the same house and that he “believe(s) they are a very happy couple.” The sponsor’s father told the Tribunal Hearing that the applicant and sponsor have known and loved each other for a long time and that he and the sponsor’s mother trust her regarding the relationship. Previously, he had provided a signed statement expressing similar opinions. The sponsor’s aunt told the Tribunal Hearing that the applicant and sponsor visit her on most weekends, that they are very attached to each other, are really in love and enjoy themselves when together. The applicant’s older brother, who is a United States citizen provided a signed statement that the sponsor had moved in to live with the applicant in April 2015 and that “They both would do anything to have their marriage remain stable.” The Tribunal finds that there is limited evidence regarding the opinion of friends and acquaintances about the nature of the relationship between the applicant and sponsor but gives the evidence available moderate positive weight in its Decision.

1. Any basis on which the persons plan and undertake joint social activities: The applicant told the Tribunal Hearing that their joint social activities are undertaken mostly on weekends when they “hang out” with friends, including going fishing with another couple and visiting the Adelaide Hills and local beaches on the sponsor’s motorbike. The Tribunal finds that the applicant and sponsor share social activities and gives this circumstance moderate weight in its Decision.

2. Social aspects conclusion: Overall, the Tribunal places moderate weight on the cumulative evidence presented regarding the nature of the social aspects of the relationship between the applicant and sponsor as being one which exhibits a mutual commitment to a shared life to the exclusion of all others, being a genuine and continuing relationship and that they are living together, or not separately and apart on a permanent basis.

   The nature of the persons’ commitment to each other

3. The duration of the relationship: On the evidence before it, the Tribunal finds that the applicant and sponsor met in November 2014 and have been in a genuine relationship since April 2015, a period of just over four years. It gives this circumstance substantial weight in its Decision.

4. The length of time during which the persons have lived together: On the evidence before it, the Tribunal finds that the sponsor moved in to live with the applicant in April 2015 and that they have lived together continuously since then, a period of just over four years. It gives this circumstance substantial weight in its decision.

5. The degree of companionship and emotional support the persons draw from each other: The applicant told the Tribunal Hearing that she became aware of the sponsor’s health problems after they started living together in April 2015 and for a period became his carer, while working part-time to cover living expenses. She said this had led to the cessation of her studies, which she hoped to resume at some future time. She said that the sponsor helped her with strong emotional support. When asked by the Tribunal what they talk about when together, the applicant and sponsor said they talk about work, about what makes them happy or sad and their plans to have a big wedding reception in Vietnam if the applicant is successful in obtaining her visa. The sponsor said he had a strong interest in computer components and electronics, which he tries to share with the applicant and which she tries to understand. He said they share an interest in motorbikes. The Tribunal is satisfied that the applicant and sponsor draw a measure of companionship and emotional support from each other and gives this circumstance moderate weight in its Decision.

6. Whether the persons see the relationship as a long-term one: The applicant and sponsor demonstrated to the Tribunal’s satisfaction that they have discussed and developed plans for their future together. Their first goal is to have a wedding ceremony in Vietnam with the applicant’s family and friends there. They said they were trying to save to be able to establish a bakery business together, similar to that owned a decade before by the sponsor’s parents. They said they plan to start a family. The sponsor said he would support his wife if she wished to resume his studies. The Tribunal is satisfied that, based on their explanation of shared plans for the future, the applicant and sponsor see the relationship as a long-term one and gives this circumstance substantial weight in its Decision.

7. Commitment conclusion: The Tribunal places substantial weight on the cumulative evidence presented regarding the nature of the persons’ commitment to each other as being one where the relationship between the applicant and sponsor exhibits a mutual commitment to a shared life to the exclusion of all others, being a genuine and continuing relationship and that they living together with long-term intent.

   Any other relevant considerations

8. The Tribunal has determined that there are no other relevant considerations.

   Overall conclusions

9. For the above reasons, having carefully considered each of the prescribed factors under s.5 F(2)(a–d), the Tribunal is satisfied that, at the time of visa application and at the time of this decision, the visa applicant and the sponsor were in a genuine and continuing relationship and had a mutual commitment to a shared life together to the exclusion of all others and live together, or not separately or apart on a permanent basis.

10. Given these findings, 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.

11. Furthermore, the Tribunal is satisfied that, at the time of visa application, the applicant’s spouse had turned 18 and the applicant was the holder of a substantive visa and therefore, the requirements of cl.820.211(2)(c) and (d) are met.

12. Therefore the applicant meets cl.820.211(2)(a) and cl.820.221.

13. 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

14. 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(2)(a) of Schedule 2 to the Regulations

    ·cl.820.221of Schedule 2 to the Regulations

    Grant Chapman
    Senior 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 financialcommitments; 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 eachother; 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).