Ngo (Migration)

[2024] AATA 2791

Ngo (Migration) [2024] AATA 2791 (2 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Tuyet Anh Thi Ngo

VISA APPLICANTS:  Mr Huu Nghiep Nguyen
Miss Minh Anh Nguyen

REPRESENTATIVE:  Ms Jennifer Nguyen (MARN: 2117717)

CASE NUMBER:  2015493

DIBP REFERENCE(S):  BCC2019/731911

MEMBER:Stephen Witts

DATE:2 July 2024

PLACE OF DECISION:  Melbourne

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

·cl 309.211of Schedule 2 to the Regulations

·cl 309.221 of Schedule 2 to the Regulations

Statement made on 02 July 2024 at 10:52am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – financial aspects – 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 309.211, 309.221

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 on 13 October 2020 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (the Act).

2. The first named visa applicant (the visa applicant) applied for the visa on 6 January 2020 on the basis of their relationship with their 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). 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 309.211 because the delegate was not satisfied that the applicants were in a genuine spousal relationship.

4. The review applicant (the sponsor) appeared before the Tribunal on 26 June 2024 to give evidence and present arguments.

5. The Tribunal also received oral evidence from the primary visa applicant (the applicant)

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

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 applicant and the sponsor are in a genuine spousal relationship.

   Whether the parties are in a spouse or de facto relationship

9. Clause 309.211(2) requires that, at the time the visa application was made, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. With limited exceptions that only apply in relation to a decision to grant or not grant a Subclass 309 visa made on or after 20 August 2022, the visa applicant must continue to be the spouse or de facto partner at the time of the Tribunal’s decision: cl 309.221. In the present case the visa applicant claims to be the spouse of the review applicant 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 visa applicant’s and review applicant’s 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) is effectively a question which must be answered: He v MIBP[2017] FCAFC 206.

11. The Tribunal has considered all material before it including evidence provided prior to the hearing evidence given at the hearing.

12. The Tribunal notes it has been provided with a copy of the relevant delegate’s decision dated 13 October 2020 by the applicants. In this decision the delegate asserted that it considered the requirements of subclause 309.211, and the requirements under section 5CB and regulation 1.15A, and made a decision that although it accepted the applicants were legally married but nevertheless, they were not in a genuine spousal relationship.

13. Regarding the financial aspects of the relationship the delegate contended that the applicant and sponsor have not provided any evidence regarding the financial aspects of the relationship noting that they live in separate countries but that there was not strong support for the existence of a relationship based on an assessment of the financial commitments between the parties.

14. Regarding the nature of the household the delegate noted that the parties have rented a room in a hotel and provided a receipt but that there was not sufficient evidence of a shared household.

15. Regarding the social aspects of the relationship the delegate noted that a selection of photographs with family and friends was provided, that statutory declarations were provided from a cousin and a friend but that there was insufficient evidence to demonstrate the social aspects of the relationship.

16. Regarding the nature of their commitment to each other the delegate noted that the applicants were legally married but that there were some discrepancies in the recollection of the parties acknowledging that a couple may remember some aspects of the relationship differently but that although there may be regular communication via social media the knowledge that the applicant sponsor had of each other’s personal circumstances was lacking.

17. The Tribunal noted it has also considered evidence provided by the applicants prior to the hearing. This includes a submission from the applicant’s representative dated 12 June 2024 stating that the applicant and the sponsor are in a genuine and continuing relationship noting that they are validly married.

18. It was stated that they met during a holiday tour and that the friendship soon developed into a marriage which continues today. It was stated that they remain in contact with one another through social media, that they have both been in broken relationships and have failed marriages. It was stated they have both experienced the challenges of being single parents and that their children are of a similar age, and that although they are geographically distant, they do provide each other with emotional support.

19. Regarding the financial aspects of the relationship, it was stated that because they live in different locations it is difficult to merge their financial matters including jointly owning assets and combine the financial resources and that they have discussed their decision not to combine their incomes and that they will do so once the applicant resides in Australia and establishes a shared household. It was stated that they continue to support each other during times of need and share vacation expenses when the sponsor travels to Vietnam.

20. Regarding the social aspects of the relationship, it was stated that the applicant and the sponsor to present themselves to their social circle as being happily married noting the photographs have been provided of various moments during our relationship including the sponsor’s mother’s funeral and also that witness statements have been provided.

21. Regarding the nature of the household, it was stated that the parties are separated due to geographic separation but that the couple had been living a committed and exclusive spousal relationship.

22. Regarding the nature of their commitment to each other it was stated that the applicants are legally married, and it was highlighted that during the pandemic the sponsor’s mother died and that the applicant attended the funeral on her behalf.

23. The Tribunal notes other material was provided prior to the hearing including details of flights to Vietnam by the sponsor most recently in June 2024, relationship statements from the parties, details of social media contact untranslated, and other material.

24. At the hearing the Tribunal had a discussion with the parties regarding the application.

25. The applicant stated that he has never visited Australia but that he made a visitor visa application in 2019 to visit the sponsor but that that was refused. He stated that he does not have family in Australia other than one female cousin. He stated that he has his parents in Vietnam and he is one of six siblings all who live in Vietnam. He stated that he was previously married in 2006 and divorced in 2018 and that he has one daughter from this relationship who was born in 2007, who is also a party to this application.

26. He stated that he first met the sponsor, his wife, at the airport in Vietnam on 5 October 2018 while joining a tour to Korea that the sponsor was also on.

27. He provided the following evidence regarding the time that they have spent together since then. This included 4 weeks together in March 2019 when they travelled to Thailand, 10 days together in Vietnam in November 2019, 2 weeks together in Vietnam in July 2019 for his birthday, 2 weeks together in September 2019 when they were married, several months together from October 2020 when the sponsor’s mother died and when the sponsor visited Vietnam but was then isolated for two weeks because of the pandemic and that during that time they spent most of the time living together with the sponsor’s father in her father’s house as the applicant lived in Ho Chi Minh City. He further stated that his wife came back to Vietnam in October 2022 and that they were together for 4 weeks or so at that time for the anniversary of her mother’s death. He provided evidence that they were then together for 4 weeks in February 2023 together with her 2 daughters, that they were together again in Vietnam for 4 weeks in October 2023, and that most recently they were together in Vietnam for 2 weeks in June 2024.

28. The applicant stated that during most of this time they were together in his house and that his daughter also lived there with them.

29. The Tribunal that had a detailed discussion with the parties regarding the lack of financial aspects to the relationship. The parties stated that they acknowledged that there were financial aspects lacking but that they made the decision that they would remain separate until they were together in Australia. The sponsor stated that she lives here in Australia in her own home with her two children aged 17 and 20 and that it was agreed that they wouldn’t pool financial resources until her husband was living in Australia.

30. The sponsor stated that she first arrived in Australia in 2003 on a partner visa after having married an Australian citizen in 2002 but that they were divorced in 2009. She stated that she is one of 8 siblings and that 6 of them live in Australia, 1 lives in Vietnam and 1 in England.

31. The Tribunal now turns to an assessment of this evidence as outlined below.

    Are the requirements under section the parties validly married?

32. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal notes that the applicant and the sponsor provided a marriage certificate issued in Vietnam on 14 October 2019. 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?

33. The Tribunal now turns to an assessment as to whether the applicants have met the requirements of reg 1.15A(3)(a),(b),(c) and (d).

    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.

34. As noted above the Tribunal is concerned by the lack of financial aspects of the relationship and finds that although there is evidence that there is sharing of day-to-day household expenses when they are together, but that other evidence is lacking, and that this lends weight to a contention that the applicants may not be in a genuine spousal relationship.

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

35. The Tribunal notes the evidence above that the applicants have shared a household together on regular occasions often for significant amounts of time since 2019 and that they also shared a household most recently in June 2024. The Tribunal notes evidence of joint living arrangements and also the interaction between the children of the parties on visits to Vietnam. The Tribunal finds that this lends weight to the contention that the applicant and the sponsor are in a genuine spousal relationship.

    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.

36. The Tribunal notes the evidence provided as to the social aspects of the relationship and is satisfied that they do represent themselves to their families in both countries and their friends that they are in a genuine spousal relationship and that this lends weight to a contention that the applicant and the sponsor are in a genuine spousal relationship.

    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.

37. The Tribunal notes evidence above the they are validly married and is also satisfied that there is a genuine commitment between the couple built up over the last five or six years and that this lends weight to a contention that they are in a genuine spousal relationship.

    Any other circumstances of the relationship.

38. The Tribunal has considered all the relevant circumstances of the relationship provided in evidence.

39. The Tribunal finds that the applicant and the sponsor have met the requirements of s 5F(2)(b)-(d) and have demonstrated that they have a mutual commitment to a shared life to the exclusion of others; that they have a genuine and continuing relationship; and that they intend to live together and not separately and apart on a permanent basis.

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

41. Therefore the primary visa applicant meets cl 309.211 and cl 309.221.

42. The Tribunal also finds that as the primary applicant meets the requirements for the grant of the visa that the secondary applicant also meets the requirements for the grant of the visa.

43. 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

44. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl 309.211 of Schedule 2 to the Regulations

    ·cl 309.221 of Schedule 2 to the Regulations

    Stephen Witts
    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).