Ngo (Migration) - [2024] AATA 461

Ngo (Migration) [2024] AATA 461 (19 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Thi Thu Ha Ngo
REPRESENTATIVE:  Ms My Yen Tran
CASE NUMBER:  1905816
HOME AFFAIRS REFERENCE(S):          BCC2017/4593905
MEMBER:Katie Malyon
DATE:19 January 2024
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) visa:
·cl 820.211 of Schedule 2 to the Regulations; and,
·cl 820.221 of Schedule 2 to the Regulations.

Statement made on 19 January 2024 at 3:04 pm
CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820–– have declared their spousal relationship to the ATO – couple have demonstrated the social nature of the spousal relationship – have a child together – couple have been in a relationship since June 2017 – parties share joint responsibility for the care and support of their child – validly married –– financial aspects of their relationship are indicative of a couple in a spousal relationship – parties see their relationship as a long-term commitment – credible witnesses – decision under review remitted
LEGISLATION
Migration Act 1958, ss, 5F, 65, 359, 360
Migration Regulations 1994, r 1.15, Schedule 2, cls 820.211, 820.221
CASES
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicant, Vietnamese national Mrs Thi Thu Ha Ngo, applied for the visa on 4 December 2017 on the basis of her spousal relationship with her sponsor, Australian citizen Mr Van Trung Phan. At that time, Class UK contained only one subclass: Subclass 820 (Partner). 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 delegate refused to grant the visa on the basis that Mrs Ngo did not satisfy cl 820.211(2)(a) of Schedule 2 to the Regulations because, after considering the matters prescribed under reg 1.15A (Spouse), there was insufficient evidence to demonstrate Mrs Ngo was the ‘spouse’ of Mr Phan as defined in s 5F of the Act. The delegate was not satisfied that evidence supported the existence of a genuine and continuing relationship between Mrs Ngo and Mr Phan. In particular, the delegate noted that, in her interview, Mrs Ngo demonstrated limited knowledge about Mr Phan: she provided the incorrect date for her marriage, did not know details about Mr Phan’s job, where he goes fishing despite this being his favourite activity and nor did she have knowledge of his immigration background in Australia. Further, the delegate expressed concern that the couple married less than 3 months after meeting. A copy of the delegate’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ngo (Migration)

Details

AGLC: Ngo (Migration) [2024] AATA 461
Case: [2024] AATA 461
Decision Date: 19 January 2024

CaseChat Overview and Summary

This matter concerned an appeal by Mrs Ngo against a decision regarding her Partner (Temporary) (Class UK) visa, Subclass 820. The appeal was heard by Member Katie Malyon. The core of the dispute was whether Mrs Ngo was the 'spouse' of her sponsor, Mr Phan, at the time of her visa application and at the time of the Tribunal's decision, as required by the Migration Regulations 1994.

The legal issues before the Tribunal were whether Mrs Ngo and Mr Phan were in a genuine and continuing married relationship, and whether they met the criteria for a Subclass 820 visa under clauses 820.211 and 820.221 of Schedule 2 to the Regulations. Specifically, the Tribunal had to consider the financial, household, social, and commitment aspects of their relationship, as outlined in regulation 1.15A(3), and determine if their relationship was a genuine and continuing spousal relationship.

The Tribunal acknowledged that it had more information than the original delegate. It found that Mr Phan was an Australian citizen and that Mrs Ngo had provided evidence of their marriage. The Tribunal also noted the couple had a child together, shared joint responsibility for the child's care, and that their financial aspects and social presentation indicated a spousal relationship. The Tribunal concluded that the evidence presented demonstrated a genuine and continuing spousal relationship.

Consequently, the Tribunal remitted the application for the visa to the Minister for reconsideration, with a direction that the applicant met the criteria under clauses 820.211 and 820.221 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. The Tribunal acknowledges that it has significantly more information than that which was available to the delegate at the time of her decision. CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether Mrs Ngo is the ‘spouse’ of her sponsor Mr Phan both at the time of application and at the time of this decision. Relevant provisions of the Act and the Regulations referred to in this decision are set out in the Attachment to the decision.Background By way of brief background, the parties met on 27 May 2017 at a family gathering at the Cabramatta bowling club. At the time, Mrs Ngo was living in Melbourne. They visited each other respectively in Melbourne and Sydney over the next 3 weeks and kept in touch over the phone when not together. The couple became engaged on 19 June 2017, the day Mrs Ngo flew to Sydney with a view to travelling later that day to Vietnam together with Mr Phan to meet respective family and friends in Mrs Ngo’s hometown of Hai Phong and Mr Phan’s hometown of Da Nang. With the affirmed support of their respective families, Mr Phan and Mrs Ngo were married at Fairfield (in Western Sydney) on 12 August 2017. A copy of their Marriage Certificate was provided to the Department. Although the couple were married in Fairfield on 12 August 2017, Mrs Ngo did not permanently move to Sydney until November 2017. Since that time, the couple have been living together. Initially, they lived with Mr Phan’s brother and his wife in Wakelin Avenue, Mount Prichard but then moved to live with his parents at their house at Prince Street, Canley Heights in February 2018. They moved to live in a leased studio apartment in Torrens Street, Canley Heights for 6 months in the first half of 2019 before leasing a unit in Sackville Street, Canley Vale on 8 July 2019. Mrs Ngo and Mr Phan remained there until 19 March 2021 when they moved to their current apartment in Equity Place, Canley Vale. Are the parties in a spousal relationship? Clause 820.211(2)(a) and cl 820.221 of Schedule 2 to the Regulations respectively 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, an Australian permanent resident or an eligible New Zealand citizen. In her visa application Mrs Ngo claimed, and the delegate accepted, that she was married to Mr Phan. However, as noted above, the delegate expressed concern both at the speed of the couple’s relationship and Mrs Ngo’s limited knowledge on a range of matters pertaining to her husband’s circumstances as confirmed at her interview held on 18 January 2019. Based on the evidence provided, the Tribunal accepts that Mr Phan is an Australian citizen. He provided the Department with a copy of the bio data page of his Australian passport expiring 27 February 2027 which confirms that he was born in Chi Ma Wan in Hong Kong on 30 November 1985. He also provided evidence of his Australian citizenship granted on 2 June 1998 to his mother Thi Tien Nguyen which included him as one of her 2 children.

Decision

Reasons for decision

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 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 of Schedule 2 to the Regulations; and, ·cl 820.221 of Schedule 2 to the Regulations. Katie MalyonMemberATTACHMENT - Extracts from Migration Act 1958 and Migration Regulations 1994Migration Act 19585F Spouse(1) For the purposes of this Act, a person is the spouseof another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.(2) For the purposes of subsection (1), persons are in a married relationship if: (a) they are married to each other under a marriage that is valid for the purposes of this Act; and (b) they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and (c) the relationship between them is genuine and continuing; and (d) they: (i) live together; or (ii) do not live separately and apart on a permanent basis.(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.Note: Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.…Migration Regulations 19941.15A 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).Schedule 2Subclass 820 -- Partner820.21- Criteria to be satisfied at time of application820.211 (1) The applicant: (a) is not the holder of a Subclass 771 (Transit) visa; and (b) meets the requirements of subclause (2), (5), (6), (7), (8) or (9). (2) An applicant meets the requirements of this subclause if: (a) the applicant is the spouse or de facto partner of a person who:(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and (ii) is not prohibited by subclause (2B) from being a sponsoring partner; and (b) [repealed] (c) the applicant is sponsored:(i) if the applicant's spouse or de facto partner has turned 18 - by the spouse or de facto partner; or (ii) if the applicant's spouse has not turned 18 - by a parent or guardian of the spouse who:(A) has turned 18; and(B) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and (d) in the case of an applicant who is not the holder of a substantive visa - either: (i) the applicant:(A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and(B) satisfies Schedule 3 criterion 3002; or(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria. …820.22 - Criteria to be satisfied at time of decision820.221 (1) In the case of an applicant referred to in subclause 820.211(2), (5), (6), (7), (8) or (9), the applicant either: (a) continues to meet the requirements of the applicable subclause; or (b) meets the requirements of subclause (2) or (3). (2) An applicant meets the requirements of this subclause if the applicant: (a) would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the s sponsoring partner has died; and (b) satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died; and (c) has developed close business, cultural or personal ties in Australia. (3) An applicant meets the requirements of this subclause if: (a) the applicant would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and (b) either or both of the following circumstances applies: (i) either or both of the following: (A) the applicant; (B) a dependent child of the sponsoring partner or of the applicant or of both of them;has suffered family violence committed by the sponsoring partner; (ii) the applicant: (A) has custody or joint custody of, or access to; or (B) has a residence order or contact order made under the Family Law Act 1975relating to; at least 1 child in respect of whom the sponsoring partner: (C) has been granted joint custody or access by a court; or (D) has a residence order or contact order made under the Family Law Act 1975; or (E) has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.Note: For special provisions relating to family violence, see Division 1.5. (4) If paragraph 820.211(2)(c), (5)(f) or (6)(c) requires the applicant to be sponsored: (a) the sponsorship has been approved by the Minister and is still in force; and (b) the sponsor has consented to the disclosure by the Department, to each applicant included in the sponsorship, of any conviction of the sponsor for a relevant offence (within the meaning of subregulation 1.20KC(2)).Note 1: Regulations 1.20J, 1.20KA, 1.20KB and 1.20KC limit the Minister's discretion to approve sponsorships. Note 2: The sponsor may be asked to consent to the disclosure mentioned in paragraph (b) on the approved form required to be completed by the sponsor in relation to the visa application. (5) For the purposes of subclause (4), the conviction of the sponsor for a relevant offence is to be disregarded if: (a) the conviction has been quashed or otherwise nullified; or (b) both: (i) the sponsor has been pardoned in relation to the conviction; and (ii) the effect of that pardon is that the sponsor is taken never to have been convicted of the offence.… oOOo

Ratio Decidendi

Legal Principle Established

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