Ly (Migration)

[2021] AATA 1119

Ly (Migration) [2021] AATA 1119 (12 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Thanh Ha Ly

VISA APPLICANT:  Ms Thi Minh Quang Huynh

CASE NUMBER:  1837838

DIBP REFERENCE(S):  BCC2017/4803983

MEMBER:Christine Kannis

DATE:12 March 2021

PLACE OF DECISION:  Perth

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

·cl.309.211(2) of Schedule 2 to the Regulations

·cl.309.221 of Schedule 2 to the Regulations

Statement made on 12 March 2021 at 6:05am

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and ongoing relationship – money transfers – joint travels – evidence of regular communication – delay in registering marriage – business plans – decision under review remitted     

LEGISLATION

Migration Act 1958, ss 5F, 65
Migration Regulations 1994, Schedule 2, cls 309.211, 309.221; r 1.15

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 on 15 October 2018 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 15 December 2017 on the basis of her relationship with her sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.309.211(2) because the delegate was not satisfied that her relationship with the review applicant met the definition of spouse under the Act.

4. A copy of the Decision Record was submitted to the Tribunal by the review applicant for the purposes of the review.

5. The review applicant appeared before the Tribunal on 16 February 2021 by telephone to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant from Vietnam. The Tribunal was assisted by an interpreter in the Vietnamese and English languages.

6. The review applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the relationship between the visa applicant and the review applicant meets the definition of ‘spouse’ in s.5F of the Act.

9. Section 5F 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 of the relationship, the nature of the household and the persons’ commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.

10. Clauses 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.   

11. Prior to the scheduled hearing the review applicant provided additional documentation which included but was not limited to a document described as a statutory declaration made by the parties jointly. The document was signed by both parties but the content was expressed as being made by the visa applicant only.  The document was not a statutory declaration, was not witnessed and was not dated.  The document provided the following information:

    ·In January 2010 the visa applicant advertised in a newspaper seeking a boyfriend.

    ·In early 2010 the review applicant called the visa applicant and said he wanted to be her friend. They talked for an hour.

    ·The review applicant called the visa applicant 4 to 5 times every day and their friendship became serious.

    ·The review applicant financially supported the visa applicant and sent her about AUD$400 per week.

    ·In August 2010 the review applicant’s father passed away and he travelled to Vietnam for the funeral. The visa applicant picked the review applicant up from the airport and they met in person for the first time on 25 August 2010. She accompanied him to the funeral and after they travelled together within Vietnam and did sightseeing and shopping before the review applicant returned to Australia.

    ·The parties remained in contact every day.

    ·The review applicant travelled to Vietnam on 24 December 2010. They visited the review applicant’s family from 2 to 16 January 2011.

    ·After the review applicant obtained a divorce from his then wife in July 2011, he proposed to the visa applicant and asked her to organise the wedding ceremony for end of the year.

    ·The review applicant travelled to Vietnam on 25 December 2011 to prepare for the wedding. The wedding ceremony was performed on 31 December 2011 at the visa applicant’s uncle’s home. The wedding party was held at a restaurant and 130 guests attended including the visa applicant’s mother, the review applicant’s mother, relatives, friends and acquaintances. The parties honeymooned for three weeks before the review applicant returned to Australia on 22 March 2012.

    ·The review applicant performed registration of their marriage in Carnarvon on 20 October 2012. They decided to apply for a fiancé visa because it was complex and costly to register the marriage in Vietnam.

    ·The visa applicant submitted her fiancé visa application on 29 June 2012. She was interviewed by the Department on 29 October 2012 and on 9 January 2013 the visa was refused.

    ·The review applicant returned to Vietnam on 11 December 2013 to undertake registration of the marriage. On 26 April 2014 they were signed into the Certificate of Marriage to become a legally married couple.

    Are the parties validly married?

12. A certified copy of a Marriage Certificate indicating the parties were married in Vietnam on 31 December 2011 and the marriage was registered on 26 April 2014 was provided. On the basis of the written evidence before it, and in the absence of any evidence to the contrary, the Tribunal concludes that the marriage satisfies the requirements for a valid marriage for the purpose of the Act as required by s.5F(2)(a).

13. The Tribunal considered the evidence against the r.1.15A(3) factors.

    Whether the parties are in a spouse or de facto relationship

    Financial aspects

14. The Tribunal considered the evidence in relation to the financial aspects of the parties’ relationship including the extent of pooling of financial resources and any sharing of day-to-day household expenses.

15. Evidence of money transfers demonstrating that the review applicant sent the visa applicant funds during the period 2014 to 2020 was provided. The parties gave generally consistent evidence at hearing regarding the frequency of these transfers. The review applicant told the Tribunal that he sends the visa applicant money for her living expenses because it is the responsibility of a husband to look after his wife. He said she works as a domestic for her cousin and the money he sends is to supplement her employment income.  

16. The review applicant said he and the visa applicant do not have any joint assets or joint liabilities. He said they do not pool their financial resources and do not share day-to-day household expenses.

17. The Tribunal accepts that the parties reside in different countries and that they have not established any joint financial arrangements. The Tribunal gives this factor little weight.

    Nature of the household

18. The Tribunal considered the evidence in relation to the nature of the household including any joint responsibility for care and support of children, the parties’ living arrangements and any sharing of housework.

19. The review applicant has visited the visa applicant for two three-month periods since the time of application. The Tribunal was provided with proof of temporary household registration for the review applicant at the visa applicant’s address during one of these visits. The parties gave consistent evidence at hearing that they lived together during the two periods. They said they lived with relatives. The parties gave generally consistent evidence regarding division of household tasks during these periods.

20. The Tribunal accepts that the parties reside in different countries and that they have not established a permanent household together. The Tribunal gives this factor little weight.

    Social aspects of the relationship

21. The Tribunal considered the evidence in relation to the 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.

22. Statutory declarations made on 16 October 2017 by the review applicant’s employer Ms Kim Sa Borovina, and by the review applicant’s friend, Ms Linh Thi Nguyen, were provided. Ms Borovina’s reasons for her belief that the parties’ relationship is genuine and continuing included that she knew the review applicant wanted to sponsor the visa applicant to come to Australia and they wanted to start a new family and always want to be together. The review applicant told the Tribunal that Ms Boravina had never met the visa applicant in person and had only communicated with her by phone and on Facebook. Ms Nguyen said she had known the review applicant for nine years and had known the visa applicant for three years. Her reasons for her belief that the parties’ relationship is genuine and continuing were that the parties had known each other for over ten years. The Tribunal notes that Ms Nguyen was incorrect and the parties had known each other for only seven years at the time the statutory declaration was made. The review applicant told the Tribunal that Ms Nguyen had never met the visa applicant in person and had only communicated with her by phone and on Facebook. Given that the declarants had not met the visa applicant in person, had not spent time with the parties as a couple and taking into the general nature of the reasons for their belief about the nature of the relationship, the Tribunal accords this evidence no weight.

23. Statements dated in 2015 made by the visa applicant’s family and friends were provided.  The authors of the statements said they attended the parties’ wedding at the end of 2011. These statements pre-dated the time of application and the Tribunal gives them minimal weight.

24. Numerous photos of the parties with other people and by themselves were provided. The photos with other people included photos of them sharing meals and sightseeing with others. The photos were dated in 2018 and 2019. The parties gave consistent evidence at hearing that when the review applicant visited Vietnam they spent time together shopping, sightseeing and visiting friends and relatives. The Tribunal places weight on this evidence.

25. Following the hearing the review applicant provided documents described as certifications dated in February 2021 made by family members, a friend and the visa applicant’s neighbour, all of who reside in Vietnam and who said they attended the parties’ wedding. The statements asked for consideration of “these two people”. The Tribunal takes this to mean that the declarants consider the parties to be a couple. The Tribunal places weight on this evidence.

26. The Tribunal accepts that the parties reside in different countries and that it is difficult for them to plan and undertake joint social activities on a regular basis.  The Tribunal accepts that they have socialised with family and friends during the review applicant’s visits to Vietnam.

    The nature of the parties’ commitment

27. The Tribunal considered the nature of the persons’ commitment to each other including the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other, and whether they see the relationship as long-term.

28. The parties commenced communication in early 2010 however they did not meet in person until August 2010. They remained in contact and in July 2011 the review applicant proposed marriage and they were married on 31 December 2011 in Vietnam. The marriage was not registered in Vietnam until 26 April 2014. The review applicant has travelled to Vietnam in 2010, 2011, 2012, 2013, 2014, 2015, 2016, 2017, 2018 and 2019. Evidence of this travel was provided. 

29. The visa applicant initially applied for a Subclass 300 visa in June 2012. The visa was refused.

30. The parties gave generally consistent evidence at hearing regarding the emotional support they provide each other. The visa applicant told the Tribunal that they share their happiness and unhappiness with each other and provide comfort to each other. She said when she has been unhappy about something, she has spent extended periods crying over the phone to the review applicant.

31. The parties have consistent evidence at hearing that they are in daily contact by phone and on Messenger.

32. The parties gave consistent evidence that the review applicant’s employer has undertaken to employ the visa applicant in Australia if the visa is granted.

33. The parties gave consistent evidence with respect to their future plans to own a small rice business in Vietnam.

34. The review applicant told the Tribunal that their marriage is genuine and honest and it has been difficult to be separated for such a long period. He said absence makes the heart grow fonder and he wants to spend the rest of his life with the visa applicant. The visa applicant said they want to be reunited so they share their happiness and unhappiness and take care of each other for the rest of their lives.

35. The Tribunal finds that the parties see their relationship as long-term and that they provide each other with emotional support. The Tribunal finds that they provide each other with companionship when the review applicant visits Vietnam and through their daily communication when the review applicant is in Australia.

36. The visa applicant and the review applicant have been married for nine years (registered for nearly seven years) and since that time the review applicant has travelled to Vietnam numerous times. They have not pooled financial resources or shared day-to-day expenses. The Tribunal accepts that they reside in different countries and have limited financial resources.

37. The evidence of social recognition of the parties’ relationship was limited to photographic evidence and the certifications however the Tribunal is satisfied that it demonstrated that they represent themselves to other people as a married couple and that they are considered to be a married couple by others. 

38. The Tribunal finds that at the time of application and at the time of decision the parties were and remain in a committed long-term relationship. In making this determination the Tribunal has taken into account that the parties have been married for nine years and that the review applicant visited the visa applicant every year from the time of their marriage up until COVID-19 precluded overseas travel. The Tribunal also places weight on the parties’ consistent evidence with respect to their daily communication and the emotional support they provide to each other.

39. Having regard to all of the evidence, the Tribunal concludes as follows:

    • The parties are married to each other under a marriage that is valid for the purposes of the Act;
    • they are not living separately and apart on a permanent basis;
    • they have a mutual commitment to a shared life together to the exclusion of others; and
    •  that the relationship is genuine and continuing.

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

41. Therefore, the visa applicant meets cl.309.211(2) and cl.309.221.

42. 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 309 visa.

    DECISION

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

    ·cl.309.211(2) of Schedule 2 to the Regulations

    ·cl.309.221 of Schedule 2 to the Regulations

    Christine Kannis
    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).