Ly (Migration)

[2022] AATA 4481

Ly (Migration) [2022] AATA 4481 (7 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Thanh Thao Ly

REPRESENTATIVE:  Mr HUU LOC NGUYEN (MARN: 1795573)

CASE NUMBER:  1836218

HOME AFFAIRS REFERENCE(S):          BCC2017/4332832

MEMBER:Edward Howard

DATE:7 October 2022

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) of Schedule 2 to the Regulations

·cl 820.221 of Schedule 2 to the Regulations

Statement made on 07 October 2022 at 5:56pm

CATCHWORDS  
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – financial aspects – joint ownership of a business – nature of the household – social aspects – nature of the commitment – 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 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 17 November 2017 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.

4.    The applicant appeared before the Tribunal on 6 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Mr Tu Thien Dam and Ms Diep Le. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5.    The applicant was represented in relation to the review.

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

BACKGROUND

7.    The visa applicant is Ms Thi Thanh Thao Ly, aged 25, a citizen of Vietnam and the sponsor is Mr Tu Thien Dam aged 30, an Australian citizen. At the time of the visa application in November 2017, the parties claimed to have been in a relationship from 2016. The parties were married on 29 July 2017 in Australia.

ISSUES AND LAW

8.    There is a two stage process for onshore Partner visas. A visa applicant must first hold a provisional visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a permanent visa. The grant of a permanent visa would generally depend on whether the relationship has continued for a period of at least two years. In this matter, the Tribunal is considering the first, temporary stage.

9.    Where the Tribunal is considering a criterion that requires the definition of spouse or de facto partner to be met at the time of the visa application, the information supplied in relation to the reg 1.15A(3) matters may relate to circumstances after the time of application. In forming a view of the relationship at the time of application, the Tribunal must consider all relevant evidence, which may include evidence of events after the date of application insofar as it assists in the task of determining whether the visa applicant and the sponsor were in a partner relationship at the time of the application. Evidence of events after the visa application is relevant if it tends logically to show the existence or non-existence of facts relevant to the issue to be determined.[1] The Tribunal observes this to be a matter where the visa applicant submitted limited documentary evidence in support of his visa application to the Department of Home Affairs and then furnished the Tribunal with further evidence that was unavailable to the primary decision maker.

[1] Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139 at [24] per Deane J which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time; and see also Bretag v IRT [1991] FCA 582 at [13]–[15].

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

Whether the parties are in a spouse or de facto relationship

11.      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.

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 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?

13.      If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties provided a Certificate of Marriage dated 10 August 2017. 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?

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.

14.      The evidence of the visa applicant is that she and her husband, the sponsor, purchased a bakery situated at Moorooka in 2018. The business was purchased from the aunt and uncle of the visa applicant, for the amount of $190,000. Her evidence is that her parents assisted the parties in purchasing the business. The business premises are rented at a cost of approximately $3000 per month. The management of this property is through a real estate agent.

15.      The sponsor works full-time in the business, which was, until recently, open seven days per week, but is now open six days per week so that he can spend more time with his family. The sponsor works on average, a 10-hour day. The visa applicant works in the business from Monday to Saturday between the hours of 1.00pm and 5.00pm, a total of 24 hours per week. The business has one other employee who is not a family member.

16.      Each of the parties has their own bank account with the Commonwealth Bank and there is also a joint Commonwealth Bank account from which the parties pay their private expenses.

17.      The parties also have a business bank account with a Commonwealth Bank from which all of the bills and expenses associated with the business are paid. The sponsor takes care of the bookkeeping for the business and the tax returns are lodged by their accountant. The visa applicant and sponsor share the duties of paying the bills from the business.

18.      The parties live in a rented property at Durack and have been there since approximately September/October 2018. They currently pay $400 per week in rent and are the sole tenants of the three-bedroom premises together with their 18-month-old daughter. The parties also have another child on the way, with an expected birth date in April 2023.

19.      The parties no longer have superannuation policies, as proprietors of the business. They have no life insurance.

20.      The parties own a BMW motor vehicle, which they purchased in the name of the sponsor approximately three months after their marriage. The vehicle cost approximately $38,000, for which they took out a car loan over a five-year period. The evidence of the parties is that they have no liability over the business itself.

21.      On the evidence, the Tribunal is satisfied that the parties have joint ownership of a major asset, namely, the bakery business which they purchased at Moorooka. At this stage they do not have any joint ownership of real estate, however, they do have the joint liability of their rental property at Durack where they have been residing for approximately four years and joint responsibility for the rental premises for their business which is subject to a commercial lease. The Tribunal is satisfied that the parties pool their financial resources in relation to major financial commitments, both through the business banking accounts and their personal banking accounts. The Tribunal is further satisfied that the parties share their day-to-day household expenses. The Tribunal weighs the financial aspects of the relationship in favour of the visa applicant.

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

22.      The parties commenced living together after their wedding in July 2017 at Inala and then moved to their current residence at Durack approximately four years ago. They have one child, a daughter who is 18 months old and are expecting their second child in April 2023. The evidence of the parties is that they both care for the child when they are at home and that when the visa applicant works in the business, their child attends the business with her. Generally, the evidence of the parties was that the visa applicant carries out more of the child caring childcare duties. The visa applicant gave evidence that she undertakes most of the cooking however, both parties agreed that they share the housework including cleaning and similar duties.

23.      The Tribunal is satisfied that the parties household living arrangements are consistent with that of a genuine couple in a married relationship and weighs the consideration of the household aspects in favour of the visa applicant.

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.

24.      The parties have provided evidence in support of the social aspects of the relationship. This evidence supports the claim that they represent themselves to other people as being married to each other. Photographs depict the parties in various settings including their wedding ceremony, socialising and dining with friends and family. There are also photographs of the visa applicant, the sponsor and their daughter as a family group.

25.      The evidence of the parties is that they have a close and strong relationship with the visa applicant’s aunts, who are her mother’s older sisters. Her aunts live in Oxley and Inala respectively and they see them approximately once a month each. The sponsor’s mother and stepfather live in Brisbane also and they visit them approximately once or twice each month.

26.      The parties occasionally go out on weekends, although they do work long hours in their business and have the care of a young child. They will occasionally go for walks together or dining out at a restaurant in Sunnybank. They will also occasionally visit the Gold Coast to go to the beach.

27.      The visa applicant’s aunt, Ms Le, gave evidence that the parties visit her each month. Ms Le and her husband own a bakery in North Maclean. They previously owned two bakeries however, they sold the Moorooka bakery to the visa applicant and her husband. Ms Le’s evidence was that she has observed her niece and husband to live very happily together and believes that the couple love and support each other. Ms Le believes that that they have made a success of the bakery and worked very hard together. Ms Le will occasionally visit the parties at their home and they will often attend her house for family and social occasions also.

28.      The Tribunal is satisfied on the evidence that the parties represent themselves to other people as being married to each other and that they enjoy the opinion of friends and family concerning the relationship and that they plan and undertake joint social activities. The Tribunal weighs the social aspects of the relationship in favour of the visa applicant.

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.

29.      The evidence of the parties is that they met through a mutual friend whom the visa applicant was living with in 2015. The first meeting took place when she attended the workplace of her friend, a supermarket where the sponsor also worked. In 2016, the couple started dating and after that time visited Vietnam to visit with family members. The couple then travelled with her husband’s family to Thailand for a holiday.

30.      The parties married in Brisbane on 29 July 2017 and commenced living at Lavender Street Inala. At this residence they rented only a room, through an acquaintance, and paid rent of $180 per week. After approximately 18 months, the parties were able to afford their own rental home at Durack and moved there in September/October 2018. They still currently reside at the Durack residence. Whilst they intend to stay there for the time being, their evidence is that they hope to buy a home together in the future.

31.      They also gave evidence of their wish to expand their business if possible and purchase a larger bakery. The parties have a significant financial investment in the business and work hard together to make a success of it. The evidence of the visa applicant is that she and her husband support each other and look forward to having their family of two children. The parties see the relationship as long-term and a lifelong commitment. The sponsor gave evidence that he and his wife have a very close relationship, that they understand each other and support each other greatly, especially when he is very tired from working in the business. The evidence of the parties is that the sponsor has reduced his work commitments from seven days per week to six days per week in order to spend more time with his wife and child.

32.      The Tribunal is satisfied from the evidence that the parties have developed a strong married relationship and have assisted and supported each other through challenging circumstances including the purchase and development of the business and the long hours associated with the operation of that business. The Tribunal weighs the nature of the commitment in favour of the visa applicant.

Overall conclusions

1. Having carefully considered all the evidence and for the reasons above, the Tribunal is satisfied that at the time of application, the parties had a mutual commitment to a shared life as a married couple to the exclusion of all others; that the relationship between them is genuine and continuing; and that they have lived together as a married couple since July 2017. The Tribunal is therefore satisfied the requirements of section 5F of the act were met the time of the visa application.

2. The Tribunal is further satisfied that at the time of this decision the parties continue to have a mutual commitment to a shared life to the exclusion of all others and that the relationship between them has been and remains genuine and continuing. The Tribunal is also satisfied that they have lived together and not separately and apart on a permanent basis since their marriage. The Tribunal is therefore satisfied the requirements of section 5F(2)(a)-(d) of the Act are met at the time of this decision.

3. The Tribunal is therefore satisfied that the parties relationship fulfilled the criteria contained in clause 820.211(2)(a) of the regulations at the time the visa application was made and at the time of this decision.

4. The Tribunal is satisfied that at the time of the application, the visa applicant was sponsored by her spouse in accordance with cl.820.211(c). As noted by the delegate, the spouse lodged a sponsorship form in support of the application. The Tribunal is satisfied that at the time of this decision the visa applicant continues to be sponsored by her spouse. The Tribunal is further satisfied that at the time of this application, the visa applicant was the holder of a substantive visa in accordance with cl.820.211(d) and that she continues to meet that subclause at the time of this decision.

5. Pursuant to clause 820.221(1), in order to be eligible for the grant of a subclass 820 (UK) visa, the visa applicant must also continue to meet the requirements of clause 8.820.211(2) at the time of this decision. Having regard to the evidence before the Tribunal, the Tribunal is satisfied that the visa applicant continues to meet the requirements of clause 820.211(2), hence satisfying the criteria in clause 820.221.

6. Therefore, the Tribunal finds that the visa applicant meets the requirements of clauses 820.211(2) and 820.221.

7. 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

8. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the visa applicant meets the following criteria for a subclass 820 brackets partner) visa:

   ·cl 820.211(2) of Schedule 2 to the Regulations

   ·cl 820.221 of Schedule 2 to the Regulations

   Edward Howard
   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 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).