Lin (Migration)

[2021] AATA 4347

Lin (Migration) [2021] AATA 4347 (3 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Pei-Hua Lin

CASE NUMBER:  1819100

HOME AFFAIRS REFERENCE(S):          BCC2018/1052053

MEMBER:Meredith Jackson

DATE:3 November 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 03 November 2021 at 4:53pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – civil partnership registered before applying for visa – validly married between applying for review and hearing – financial, social and household aspects of relationship – mortgage, bank accounts and household purchases – documentary and oral evidence and supporting statements – nature of commitment – some discrepancies in evidence about start of relationship – relationship now 5 years’ duration – credible evidence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 802.211, 802.221

CASES
Bretag v MILGEA [1991] FCA 582
He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS

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 5 March 2018 on the basis of her relationship with her 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)(a) because the evidence and information provided was not sufficient to demonstrate that the applicant is the spouse or de facto partner of the sponsor, as defined under section 5F and 5CB of the Migration Act.

4.    The applicant Ms Pei-Hua Lin appeared before the Tribunal on 26 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Mr Dinh Duy Khang Nguyen. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5.    The applicant was represented in relation to the review by her registered migration agent.

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

BACKGROUND

7.    The visa applicant Ms Pei-Hua Lin is a national of Taiwan born in 1985. She first arrived in Australia on 6 March 2016 as the holder of a working holiday visa. She was granted a second working holiday visa on 10 October 2016. The sponsor is Mr Dinh Duy Khang Nguyen, since September 2018, a citizen of Australia. He was born in Vietnam in 1992. The parties claim to have met at work on 4 April 2016 and that on 13 June 2016, they committed to a relationship. They entered into a Queensland Civil Partnership on 6 August 2017. The visa was refused on 14 June 2018 because the parties were found not to be in a genuine de facto relationship. The parties married on 18 April 2021. Mr Nguyen bought a house in Queensland on 8 February 2019 where the parties continue to live. Mr Nguyen claims Ms Lin assisted the purchase despite being unable to be a party to the purchase for regulatory reasons. The parties claims they are committed and are planning children and a lifetime together.

ISSUES AND LAW

8.    The issue in the present case is whether the applicant at the time of application and at the time of this decision, is the spouse or de facto partner of the sponsor.

Whether the parties are in a spouse or de facto relationship

9.    Clause 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 claimed at the time of the visa application to be the de facto partner of the sponsor who is an Australian permanent resident. At the time of this decision, the applicant claims to be the spouse of the sponsor.

1. ‘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?

1. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties have provided a Certificate of Marriage recording that they were married in Queensland on 18 April 2021. 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?

1. The Tribunal has carefully considered all the evidence provided by the applicant at the time of application and on review, the oral evidence given at the hearing and documents provided after the hearing. This includes but is not limited to the delegate’s decision, financial evidence, evidentiary photographs including some of their wedding, and supporting statements about the relationship by witnesses. The Tribunal has also had regard to each matter in reg 1.15A(3)(a), (b), (c) and (d), and considered whether there are any other circumstances of the relationship under reg 1.15A(2). The Tribunal finds as follows.

Financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

1. The applicant and sponsor gave evidence that they purchased a home together on 8 February 2019 and provided documentary evidence that they continue to live in that home. The applicant claims it is in the name of Mr Nguyen only because of Australia’s restrictions on housing investment by temporary visa holders. The applicant provided evidence of Mr Nguyen having bequeathed his estate in entirety to Ms Lin and appointed her as sole Executor of his Will. The home was purchased, Mr Nguyen claims, at a cost of $295,000. He gave evidence that deposit and legal costs totalled $44,000, with those funds raised through the long-term savings of both parties. Mr Nguyen stated that he contributed about $15,000 towards the purchase; Ms Lin gave $10,000 and the remainder involved family assistance. Ms Lin claims she has no evidence of providing the $10,000 because it was given in cash, as “she prefers cash”. The parties claim their housing loan costs per month are $1,300, with Mr Nguyen contributing $800 and Ms Lin the remaining $500. The parties provided evidence that they hold a joint bank account at NAB bank and they also have their own accounts. Statements provided for the joint account show sums credited variously from both parties; while debits to the account are for a series of consumable items broadly consistent with a two person household. They include the payment of $734.75 car registration fee for a car they bought and registered in joint names; and a series of $1,000 and $2,000 deposits made on 29 December 2020 for various purposes including COVID-related cancelled tickets to Vietnam.

2. After the hearing, the applicant provided evidence of transactions in her personal current account, also at NAB bank, for the period covering the house purchase, being from January 2019 to January 2020. On 4 March 2019, the statement shows Mr Lin transferred $2750 to Mr Nguyen, which she claims was to purchase furniture from Amart for the new home; and $3,000 to Mr Nguyen on 11 March 2019. The applicant provided a receipt for $1,574 for a washing machine purchased in joint names in September 2021. The deposits made into her personal account are largely rounded sums, which Ms Lin claims reflect the cash payments made to her by her employer, a contractor to Cross Family Farms Pty Ltd, where Ms Lin worked full time as a fruit packer. A letter from Wendy Cross, a Director of the company, was provided after the hearing in which Ms Cross claimed the applicant’s salary was approximately $1000 per week or sometimes more and was paid by a contractor as cash.

3. Ms Lin attempted in the hearing to explain deposits totalling $8,000 made in December 2020. She stated that at that time, she recalled giving Mr Lin $8,000 for a holiday they took in Brisbane for about two weeks. Bank records provided confirm this, as they indicate a long list of Brisbane-based purchases for meals and other expenses at that time. Ms Lin stated that her personal account is where she puts her pay, contributes to the couple’s expenses, and is regularly used to transfer sums to Taiwan and sometimes is used for online shopping.

4. The visa applicant provided with her application for the visa, evidence of a Commonwealth Bank joint account opened on or around 5 May 2017 to which both parties contributed and which was used to pay for consumables. The sponsor stated the switch to NAB was due to that bank becoming their home lender.

5. The parties gave evidence they do not have defined liabilities to one another and that they pool their resources on demand. They claim they do not keep a strict record of who pays for what, because, Ms Lin stated, “we don’t split our funds that much”.

6. The Tribunal has considered the financial evidence provided and is satisfied, on the evidence provided, that the parties have purchased some assets together. The parties have provided evidence of having bought and registered a car together in June 2017. The Tribunal accepts that Ms Lin’s immigration status restricted her opportunity to jointly buy the house, but that Mr Nguyen has provided for contingent ownership in his Will. On balance, the Tribunal is satisfied that the applicant and sponsor share rights to the parties’ major assets. The Tribunal is also satisfied that the parties pool their resources through a joint account to which they each contribute in an ad hoc manner. While this does not reflect a comprehensive pooling of assets, the Tribunal considers the extent of sharing is consistent with common contemporary practice in spouse and de facto relationships.

7. The Tribunal having carefully considered the evidence before it, affords the financial considerations some weight in the applicant’s favour.

Nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

1. The applicant and sponsor do not have children, but each gave evidence that they  plan to have their first baby “next year”, and that they want two children.  The applicant provided evidence with the visa application that they signed a joint, retrospective tenancy agreement for rooming accommodation on 4 June 2017 for accommodation commencing on 16 August 2016 and open ended at the time of signing. Since moving to their new home, Mr Nguyen stated, the two have shared housework that is distributed on the basis of who comes home first. The first person starts preparing the evening meal, while the second cleans up afterwards. Mr Nguyen stated that he does floors and laundry and most of the yard, but they generally do most things together. The home has four bedrooms, the main bedroom they share, there is a study room, room for storage and the fourth is a guest bedroom, he stated.

2. Having considered the parties oral evidence about their living arrangements, their intention to have children and the longevity of their cohabitation, the Tribunal accepts that the parties have standard household arrangements for a young couple working and preparing for children and that they share household duties. The Tribunal weighs this in the applicant’s favour.

Social aspects of the relationship – including whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

1. In support of the social aspects of the relationship, the parties provided evidentiary photographs of the two of them in social settings including at their white lace garden wedding. They are surrounded by persons they claim are family and friends who are of varying ages. One of those present at the wedding, Mr Veekit Ton, provided a supporting statement on review dated 1 July 2021 about the relationship and his attendance at the wedding. Declarants Mr Ton and Marlyn May, a colleague of the sponsor who provided a statement on review, attest to the relationship as caring, committed and genuine. The Tribunal notes the declarants refer to the parties by their English names of “Jayson and Chris”. Ms May attests to the parties having an intention of starting a family. Other photographs depict Ms Lin attending the Australian citizenship ceremony for the sponsor, celebrating family events with relatives, and visiting Taiwan together so Mr Nguyen could meet the applicant’s family. The photographs are extensive, diverse and appear warm and credible. The Tribunal, having considered the evidence and the declarations of friends, affords the social aspects some weight.

Nature of persons' commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

1. The delegate’s decision refers to differences in the descriptions given in interviews by the parties about precisely what was said when they committed to one another. The transcripts confirm that they each remembered or described their moment of commitment differently. The Tribunal raised this aspect with the applicant and sponsor, who described how they recall, at this time, the events of April and June 2016. Each said they met in Bundaberg in April 2016 through work in the packing shed and started the relationship on 13 June 2016. They did not attempt to correct the record of what they said to each other at the point of commitment. They referred instead to the facts that they were cohabiting by August of that year, and in August 2017, they registered for a civil partnership under Queensland law. Ms Lin said they decided to live together permanently because “we were staying with each other and we both thought we liked each other and did not want to be separated”. They did not have a plan for marriage but they wanted to stay with each other and go travelling together, she said. She stated they married in April 2021 because they decided, after many years of their de facto relationship, that they did not want to live without each other. They married in Bargara Beach in April 2021 with Mr Nguyen’s parents and sister present, plus friends of his and two of her own friends present, being a total of ten people. She stated that her own family could not come to the wedding because of COVID travel restrictions, but if it had not been for that, she would have had her mother, sister and her brother in attendance; adding that her father had died. They took no honeymoon, she stated, because of lockdown but they plan to go overseas if the travel restrictions are lifted, to Japan. Her husband, she claimed, has met her family twice. When they went to Taiwan, he stayed with her family in the family home, first in 2017 and again in 2019. Mr Nguyen’s parents live in Vietnam and in 2019 they also travelled to meet them in Ho Chi Minh city where they live. The Tribunal accepts that the wedding was conducted without Ms Lin’s family because of COVID restrictions; and in part, because they had a partner visa review pending and needed to formalise their relationship without unnecessary delay.

2. Mr Nguyen said they had prioritised meeting both families before they wed because in Asian culture that was important. “My family wanted more time to know my girlfriend and I wanted to make the right decision at the right time. I did. Absolutely the right decision. My relationship gets better every day, to be honest, we are very happy and we make each other happier every day – we are one, not two. People who know you as a couple: my family, my wife’s family and friends; I met her family two times in 2019; they support the marriage.

3. Now that they are married and are planning a baby, if his wife is granted the visa, he intends to add her name to the house title, as soon as that becomes possible.  “Our love is genuine, and continuing, and we love each other more and more and we respect and care for each other; between us there is nothing else. We support each other in all respects; emotionally and financially and I devote my life to my wife.”

4. Ms Lin stated the two have now been living together five years and three months. Initially they lived in a room in a rental house, and then in the house that the sponsor (and arguably she) purchased. Ms Lin described the relationship in the hearing as being lifelong. She stated that she learned a lot of things after they got together, especially about decision-making. Now, they rely on each other when making long-term decisions, but, she said, they do not think about what they would do if they could not stay together. “I love my husband and he needs his wife to be supportive of him. We both support each other.” She stated that they have been in an exclusive relationship from the day they met, they have always been together, since the start, there has been nobody else and they are one. Ms Lin stated that she is very happy to have a husband who loves her so much. “I am a part of him, he is a part of me, we are one person, not separate. My husband and I devote our life to each other forever and now we just have a plan for next year with the baby.”

5. The representative, asked whether there were any other matters that should be raised, contributed that he had attended a few functions with the parties and they are always surrounded by friends and family whom they introduced to him; they have been very much in love for the entire period and have never lived apart; the visa applicant picks her husband up when he finishes work and they appear inseparable. He stated that from his honest and fair observation, they are close to the perfect couple, they are very keen to have a baby, and that one of the sponsor’s family had said to him: we just want to see their baby.

6. The Tribunal has considered the evidence before it regarding the nature of the commitment between the parties. The Tribunal notes they have now been in a relationship for more than  five years, and from the evidence, they have not lived apart in that time. They gave evidence separately at the hearing and appeared to the Tribunal to be credible witnesses. The Tribunal has considered the finding in the delegate’s decision that the parties had described their early commitment to one another in differing ways. The Tribunal has taken this into account and weighed it against the reality of the relationship in 2021, given that the parties have now spent considerably more time together and have taken the step of marrying. The evidence, the Tribunal finds, points to the parties having started their relationship on a less reliable foundation than it is on now. The Tribunal notes that the applicant stated, in describing her feelings for the sponsor, that she had “learned a lot, especially about decision-making”. The Tribunal found this a credible indication that the parties take their relationship seriously. There is also support for the relationship from others, given the manner in which they have conducted themselves within their community: they have English nicknames and consistent supporters. The testimony of the declarants who provided statements in favour of the relationship, in summary, state it is genuine and long term and characterised by the parties’ care and commitment for one another. Other evidence of their emotional commitment is primarily photographic, however it appears genuine and credible.

1. The Tribunal, having carefully considered all aspects of the parties’ commitment, is satisfied that it is a long term, genuine relationship of five years’ standing. There is no evidence before the Tribunal that it is contrived, and no evidence that it has ever faltered. To the contrary, it appears to be exclusive, and to feature a strong degree of companionship and emotional support. The Tribunal is satisfied that the relationship is genuine and long-term and affords the nature of the commitment weight in the parties’ favour.

Conclusions

1. In making a decision about the relationship, the Tribunal is guided by the authority in Bretag v MILGEA [1991] FCA 582, which found that to the extent that later events logically show the existence or non‑existence of facts at an earlier time, those later events may be taken into account to show the existence or non-existence of facts at the earlier time. It is evident to the Tribunal that in this matter, there are some concerning aspects to the relationship at the time of the visa application, such as the discrepancy in their description of how they conducted their relationship at the start, but that for the reasons evident at the present time, and as described in the paragraphs above, they have grown into their relationship and it is a going concern. That they are now married is one factor only in a decision about a spousal relationship, but in this matter, in the light of other evidence, the fact of the marriage tends to support the argument put forward that the two are embracing a life together and are well advanced on forming the conditions of a family. The Tribunal is satisfied that the facts at the time of this decision indicate the parties are genuinely committed to each other at the time of this decision.

2. For the reasons above, the Tribunal is satisfied that the parties, at the time of this decision, have a mutual commitment to shared life to the exclusion of others; a genuine and continuing relationship; and that they live together and not separately and apart on a permanent basis.

3. On the basis of the above the Tribunal is satisfied that the requirements of s 5F(2) are met at the time of this decision. Therefore the applicant meets cl 820.211(2)(a) and meets cl 820.221(1)(a).

4. There is no evidence the parties are related by family. The Tribunal is satisfied that Mr Nguyen was aged over 18 years when he sponsored Ms Lin, and that he is not prohibited from being a sponsoring partner.

5. 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

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

Meredith Jackson
Member

ATTACHMENT - Extract from Migration Regulations 1994

1.09A     De facto partner and de facto relationship

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

   Note 1     See regulation 2.03A for the prescribed criteria applicable to de facto partners.
   Note 2     The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
   Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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).

1. 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 in a de facto relationship with 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.

2. 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).