LE (Migration)

[2018] AATA 3675

LE (Migration) [2018] AATA 3675 (5 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Vu Tuong Vy Le

CASE NUMBER:  1711937

DIBP REFERENCE(S):  BCC2015/3678669

MEMBER:Helena Claringbold

DATE:5 September 2018

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 (Temporary)) visa:

·cl.820.211(2)(a) of Schedule 2 to the Regulations; and

·cl.820.221(1)(a) of Schedule 2 to the Regulations.

STATEMENT MADE ON 05 SEPTEMBER 2018 AT 9:50AM

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary) visa – Genuine spousal relationship – Joint household – Tenancy agreements provided – Sharing of day to day expenses – Strong commitment to each other – Credible witnesses – Third party statements support applicant’s claims – Decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), s5F
Migration Regulations 1994 (Cth), r 1.15A Schedule 2 cls 820.211, 820.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 4 December 2015, Ms Vu Tuong Vy Le, the applicant, applied for a Partner (Temporary) (Class UK) visa.  The application was made based on her relationship with Mr Khoa Dang Trung Nguyen, the sponsor.

2. On 1 June 2017, delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the applicant and sponsor were in a genuine spousal relationship. The applicant failed to meet cl.820.211(2)(a) and cl. 820.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). This is a review of the delegate’s decision.

3. On 4 September 2018, the applicant appeared before the Tribunal to give evidence and present arguments. She provided the Tribunal with a copy of the delegate’s decision record. The Tribunal also received oral evidence from Mr Nguyen. 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 by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration individually and as a whole, all the evidence in the Department of Immigration and Border Protection’s case file and the Tribunal’s case file and the evidence given at the Tribunal hearing.

   ISSUE

6. The issue in this matter is whether the applicant is the spouse of the sponsor as defined in s.5F of the Act.

   BACKGROUND ON THE EVIDENCE

7. The applicant was born in 1987 in Ba Ria-Vung Tau, Vietnam. Her parents and a sibling live in Vietnam. In 2010 she married Mr Darren Dung Huynh.  In January 2014, the applicant and Mr Huynh divorced. On 23 January 2015, she entered Australia as the holder of a visitor visa.

8. The sponsor was born in 1985, in Vietnam.  In January 1991, he entered Australia. His mother is deceased. His father and a sibling live in Australia.

9. In April 2015, the parties met in Woy Woy. On 15 November 2015, the parties married in Fairfield NSW. On 4 December 2015, the partner visa was lodged. In June 2017, the parties held a wedding reception in Vietnam.

   Is the applicant the spouse of an eligible resident?

10. The Tribunal is satisfied that the sponsor, at the time of the visa application and at the time of this decision, was and is an Australian citizen.

    Are the parties validly married?

11. At the time the visa application was made, the applicant provided evidence of her marriage to the sponsor. 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) of the Act.

    Are the parties in a spousal relationship?

12. ‘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 husband and wife 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 as to 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 applicant’s and sponsor’s household and their commitment to each other as set out in r.1.15A(3) of the Regulations, which is extracted in the attachment to this decision.

    CLAIMS AND FINDINGS

13. On these aspects the Tribunal has considered the evidence before it and is satisfied the facts of this case are as follows.

14. Regarding aspects of the parties’ financial matters, the Tribunal accepts the following: the parties do not have any joint ownership of real estate or other major assets or any joint liabilities and do not have any financial legal obligation in respect of the other. The applicant has a mortgage loan against a property in Vietnam.  The property acts as the home for her family and her parents pay the mortgage payments. The parties’ income is derived from the sponsor’s and applicant’s salaries. The sponsor’s salary is deposited into the parties’ joint bank account. From this account payments are made for rent, utilities, loan repayments and ad-hoc expenses. The applicant’s cash salary is used for general groceries and household supplies. The parties share day-to-day household expenses.

15. In the parties’ household, the Tribunal accepts the following: the parties do not have any joint responsibility for care and support of children. The parties initially lived in Bankstown where they rented a room. The parties then lived in Revesby again renting a room. The parties then moved to Cabramatta, where they rent a town house. They provided copies of correspondence addressed to them individually and jointly at their addresses and a tenancy agreement for the Cabramatta address which stated in August 2017. The housework is generally completed by the applicant with the sponsor assisting from time to time. The parties have established their household.

16. About the social aspects of the parties’ relationship, the Tribunal accepts the following: the parties socialise as a couple with family and friends and are recognised as husband and wife. They visit the sponsor’s family and their friends and enjoy having meals with them.  They also enjoy playing roulette at the club.  Authors of third-party statements claim to have known the parties since the beginning of their relationship and to witness them together and of the parties having the support of their families and friends. Photographic evidence depicts the parties’ together and with other on their wedding day and at various locations.

17. Regarding the parties’ commitment, the Tribunal accepts the following: the parties married in November 2015 in Australia. They have lived together as husband and wife for almost three years. In June 2017 the parties held a wedding ceremony in Vietnam. The sponsor said that the applicant has encouraged him to have a better relationship with his father. He stated that the applicant has provided him with a sense of family and belonging. The parties spoke of the applicant’s recent miscarriage and the emotional challenges that has presented. They plan to try to have a child early next year.  They would like to save and open a small business and ultimately purchase a home. The parties see their relationship as long term.

18. Overall the Tribunal is satisfied by the parties’ evidence at the Tribunal hearing that they are credible. They provided mainly consistent and spontaneous evidence about all aspects of their lives together. They described their relationship from its conception. They gave sound information about different aspects of their relationship including their financial circumstances, the nature of their household and their social activities and about their expectations of and commitment to their future together.

19. After considering the evidence individually and as a whole, the Tribunal is satisfied that the applicant and the sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others; that their relationship is genuine and continuing and that they do not live separately and apart on a permanent basis. Given these findings, the Tribunal is satisfied that the parties are in a spousal relationship.

20. On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) of the Act were met at the time the visa application was made and at the time of this decision.

21. Therefore the applicant meets cl.820.211(2)(a) and cl.820.221(1)(a) of Schedule 2 to the Regulations.

22. 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

23. 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 (Temporary)) visa:

    ·cl.820.211(2)(a) of Schedule 2 to the Regulations; and

    ·cl.820.221(1)(a) of Schedule 2 to the Regulations.

    Helena Claringbold
    Member

    
    

24. 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).