Ngo (Migration)

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 decision was provided to the Tribunal.
Following refusal of Mrs Ngo’s visa application on 1 March 2019, an application for review was lodged with the Tribunal. Inconsistent with cl 5.1(a) of the Tribunal’s Migration and Refugee Matters Practice Direction, no documentation was lodged by the (then) representative in support of the review application at the time it was filed with the Tribunal, apart from a copy of the delegate’s decision. Two years later, on 10 March 2021, some documentation was lodged in support of the review application.
The Tribunal’s s 359(2) letter
On 28 March 2023, the Tribunal wrote to Mrs Ngo via her newly appointed representative, inviting her to provide evidence to address the circumstances in reg 1.15A of the Regulations. In response, Mrs Ngo and Mr Phan provided the Tribunal with a range of documentation on 27 April 2023 to support Mrs Ngo’s claims for grant of the visa. Further documentation was provided on 5 September 2023 including, relevantly, the NSW Birth Certificate of Harley Phan, born on 1 August 2023 at Fairfield District Hospital which names Mrs Ngo as the baby’s mother and Mr Phan as her father.
Following constitution to the Member and review of documentation provided, the matter was set down for hearing. The Tribunal would have proceeded to make a favourable decision on the papers pursuant to s 360(2)(a) of the Act but for the fact that it is required to make an assessment as to whether Mrs Ngo and Mr Phan were, at the time of lodgement of the visa application on 4 December 2017, in a spousal relationship such that Mrs Ngo met the criteria in cl 820.211(2)(a) of Schedule 2 to the Regulations. As noted above, this was the basis of the delegate’s decision to refuse the visa application.
Hearing - 20 November 2023
Mrs Ngo, Mr Phan and baby Harley Phan appeared before the Tribunal on 20 November 2023 to give evidence and present arguments. The Tribunal found Mrs Ngo and Mr Phan to eb credible witnesses. Mrs Ngo was represented in relation to the review by her immigration lawyer, Ms My Yen Tran. The representative also attended the hearing.
The Tribunal took independent evidence from Mrs Ngo and Mr Phan during the hearing about their relationship history, the nature of their commitment to each other since their relationship started as well as the financial, social and household aspects of their relationship. Evidence was also provided about their knowledge of each other’s backgrounds and family relationships.
After the hearing, the representative provided a further statement from Mr Phan as well as further letters of support from his brother Van Hoa Phan and Mrs Ngo’s sister Thi Ha Ngo. Additional photographs of the couple taken throughout the term of their relationship as well as photographs of their wedding, Harley’s baby shower and baby Harley with her parents were also provided.
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.
Relevantly, the word ‘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 they must not live separately and apart on a permanent basis: s 5F(2)(a)-(d) of the Act.
In forming an opinion as to whether the parties are in a spousal relationship at the relevant time, consideration must be given to all of the circumstances of the relationship. This includes consideration of evidence pertaining to the financial and social aspects of the relationship, the nature of the parties’ household and their commitment to each other as set out in reg 1.15A(3) of the Regulations. Each of the specific matters contained in reg 1.15A(3) of the Regulations are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Relevant to its review of the delegate’s refusal of Mrs Ngo’s Subclass 820 Partner visa application, the Tribunal notes the following comments of Middleton J in Jayasinghe v MIMA [2006] FCA 1700 at para [35]:
Evidence of events subsequent to 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’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. The Tribunal must consider all relevant evidence, which may include evidence of events subsequent to the date of application insofar as it assists in the task of determining whether the appellant and the sponsor were in a marriage relationship at the time of the application. The question of whether particular evidence is relevant and the weight it is to be given is clearly a matter for the Tribunal.
Accordingly, in deciding this matter, the Tribunal has had regard to evidence of events that have occurred subsequent to the date of lodgement of Mrs Ngo’s visa application.
Are the parties currently validly married?
If the parties are validly married, they may meet the requirements of a spousal relationship.
As noted above, the Department’s file contains a copy of the NSW Marriage Certificate issued under the Births Deaths and Marriages Registration Act 1995 (NSW) confirming that Mrs Ngo and Mr Phan were married on 12 August 2017 in Fairfield West, NSW.
Based on evidence provided, the Tribunal is satisfied that, at the time of application, the parties were married to each other under a marriage that is valid for the purposes s 5F(2)(a) of the Act and, at the time of this decision, this continues to be the case.
Are the other requirements for a spouse relationship met?
In forming an opinion on all of the matters required in s 5F(2)(b) – s 5F(2)(d) of the Act regard must be had to all of the circumstances of the claimed relationship. This includes the factors identified in reg 1.15A(3) of the Regulations and any other circumstances relevant to the relationship under reg 1.15A(2) of the Regulations. The factors in reg 1.15A(3) of the Regulations are: the financial aspects of the relationship; the nature of the household; social aspects of the relationship; and, the nature of the persons commitment to each other. The Tribunal has considered whether these requirements are met.
Financial aspects of the relationship: reg 1.15A(3)(a)
When considering the financial aspects of the claimed spousal relationship, the Tribunal is required to have regard to: joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; and, any sharing of day-to-day household expenses.
Lodged with the Department was evidence of a joint CBA Bank Account (last 3 digits #686) for the period of July 2017 to December 2018 which displayed a number of transactions including salary transfers, cash withdrawals and debit purchases for items ranging from clothes, dinner, hotels, airline tickets, supermarkets as well as cinema attendance. Further, Mr Phan and Ms Ngo submitted superannuation details which showed one another as 100% beneficiaries.
Mrs Ngo and Mr Phan provided additional evidence to the Tribunal including: their respective current superannuation funds, Rest and AustralianSuper, nominating each other as the sole beneficiary; their joint CBA Bank Account (last 3 digits #686) statements for period 31 December 2018 to 30 June 2023 showing salary transfers, bill payments and household purchases; a joint loan agreement of 5 January 2020 with Symple Loans authorising deductions from the joint CBA Bank Account; and, NSW Rental Bond Statements in respect of the 3 tenancies referred to above at para [13]. Also provided was evidence of the couple’s: BUPA membership cards showing both of their names recorded on each card; and, ownership of a 2013 Audi motor vehicle which is insured with Budget Direct in both of their names. Mr Phan is identified as the regular driver and Mrs Ngo is the only other listed driver.
Mr Phan’s salary from his employer Samsung is paid monthly into the couple’s joint CBA Bank Account. Copies of Mr Phan’s Tax Returns for years ended 30 June 2018 to 30 June 2023 as lodged with the Australian Taxation Office (ATO) have also been provided. Each Tax Return confirms that that he has identified Mrs Ngo as his spouse. In passing, the Tribunal notes Mr Phan’s Tax Return for the year ended 30 June 2023 confirms his current salary is $76,899 per annum. Mrs Ngo has also provided her Tax Returns confirming that she initially worked with retailer Zara Australia Group and, more recently, with retailer Capri Australia. In her Tax Returns, she identifies Mr Phan as her spouse. Review of the cumulative joint CBA Bank Account statements provided confirms that normal household expenses including groceries, entertainment and Vodafone costs have been deducted on an ongoing basis. The joint CBA Bank Account statements also confirm that, as set out in their Relationship Statement lodged with the Tribunal prior to the hearing and confirmed in independent oral evidence at the hearing, deductions have been made sufficient to cover the couple’s rental payments to Mr Phan’s brother as well as the rent and NSW Rental Bond payments for the apartments leased in Sackville Street, Prince Street at Canley Heights and, more recently, the apartment at Equity Place in Canley Vale.
During the hearing and in response to the Tribunal’s question regarding either party’s ownership of real estate, Mr Phan told the Tribunal that he and his brother Van Hoa Pham purchased a property in Carpathian Road, Austral (the Austral Property) as joint tenants on 4 July 2023. The Tribunal put to Mr Phan that holding the property as joint tenants rather than as tenants-in-common meant that, in circumstances where he predeceased his brother, Mr Phan’s interest in that property would automatically pass to his brother, not his wife under his Will dated 15 August 2018, a copy of which was provided to the Tribunal by his former representative. Mr Phan responded he was not aware of the implications of holding his interest in the Austral Property as a joint tenant as they were just guided by the conveyancer: in any event, he is planning to sell his interest to his brother in the next few months. After the hearing, Mr Phan provided a signed statement (undated) confirming his oral evidence at the hearing. His brother Van Hoa Phan also provided a signed (undated) letter confirming his intention in the coming months to buy Mr Phan’s share of the Austral Property. In addition, Van Hoa Phan apologised for not fully understanding the tenancy aspect of the title to the Austral property.
Based on evidence provided by Mr Phan and Mrs Ngo, including oral evidence at the hearing, the Tribunal is satisfied that the financial aspects of their relationship are indicative of a couple in a spousal relationship both at the time of lodgement of the visa application and at the time of this decision.
Nature of the household: reg 1.15A(3)(b)
The Tribunal is required to consider the nature of the parties’ household including any joint responsibility for care and support of children, their living arrangements and any sharing of housework.
As noted above and set out in the information lodged with the Department, Mrs Ngo and Mr Phan travelled to Vietnam to meet their respective family members in June 2017 with a view to obtaining their consent to the couple’s engagement and proposed marriage. After their wedding on 12 August 2017, they shared a room in a rented house at Wakelin Ave, Mount Pritchard NSW with the sponsor’s brother and his wife. They paid $220 per week in rent. Evidence of the couple living at the address provided to the Department included Mr Phan’s NSW Driver Licence, 5 phone bills and bank statements from the CBA for their joint account for November and December 2017. From February 2018 they moved into with his parents at their house in Prince Street, Canley Heights. Evidence provided included: Mr Phan’s superannuation contact confirming his address at July 2018; copy Tax Returns for each of Mr Phan and Mrs Ngo confirming that they had declared each other as their spouse; 2 joint CBA Bank Account statements for June and December 2018; and, BUPA Membership Cards with their names sent to this address. In addition, the couple provided Statutory Declarations from each of Mr Phan’s brother and his father confirming that they lived at their respective home for the relevant period and that they shared water and electricity bills with them.
For 6 months from January 2019 to July 2019, the couple lived in a studio apartment at Torrens Street, Canley Heights. From 8 July 2019, Mrs Ngo and Mr Phan leased a unit in Sackville Street, Canley Vale as confirmed by their residential tenancy agreements, NSW Rental Bond lodgements and rental payment receipts provided. They also provided evidence of their cohabitation at this address including their respective NSW Driver Licence, gas and electricity bills in both of their names, Allianz car insurance, motor vehicle registration for their 1998 Volkswagen Golf Hatchback, separate Vodafone bills and various household purchases.
Subsequently, from 19 March 2021 the couple relocated to live at Equity Place, Canley Vale and provided a copy of their Residential Tenancy Agreement and NSW Rental Bond Statement in both of their names. At the time of the Tribunal’s hearing, Mr Phan and Mrs Ngo continue to live in this apartment. Multiple documents lodged with the Tribunal in response to its s 359(2) letter confirm the parties use of this address including their joint CBA Bank Account statements, car registration and insurance as well as NSW Driver Licences, the Residential Tenancy Agreement and related NSW Rental Bond Statement.

According to Mrs Ngo’s signed but undated statement lodged with the Tribunal on 10 March 2021 by her (then) representative, she and her husband share household duties. She normally cooks and packs lunch for them during weekdays while her husband washes up. On weekends, Mr Phan normally does the cooking at home, or he takes her to see his parents or socialise with his siblings or friends. She washes and dries their clothes but her husband puts them away. They both do the cleaning together. The couple independently echoed this evidence during the course of the hearing. Following the arrival of their daughter Hayley on 1 August 2023, Mrs Ngo has focused on looking after the couple’s baby and her husband helps out as required.
Having regard to evidence provided, including oral evidence at the hearing, the Tribunal is satisfied that the nature of the couple’s household at the time of lodgement of Mrs Ngo’s Subclass 820 visa application is indicative of a couple in a spousal relationship and that they continue to be in a spousal relationship at the time of this decision.
Social aspects of the relationship: reg 1.15A(3)(c)
In its consideration of the social aspects of the parties’ relationship the Tribunal is required to consider: whether the 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.
As confirmed by evidence in the Department’s file, the couple submitted photographic evidence of their travels together as well as photos with family and friends on different occasions. They also provided photographs of them signing their Marriage Certificate and of their wedding party held on 4 November 2017 which was attended by Mr Phan’s family as well as Mrs Ngo’s mother and relatives. Evidence provided of their wedding included invitation cards, invoices for a pre-wedding photoshoot, wedding rings, the wedding party as well as 5 congratulation cards. In addition, Statutory Declarations from Mr Phan’s friend Tran Hung Dung Ngo sworn 3 March 2018 and his sister Huong Giang Thi Phan were lodged in support of the visa application. As noted in the delegate’s decision, a copy of which was provided to the Tribunal, Mr Phan’s sister refers to Mrs Ngo as her brother’s ‘fiancée’, not his wife, despite her Form 888 being sworn on 17 March 2018: that is, 7 months after the couple’s wedding. However, as set out in the delegate’s decision, a subsequent explanation for this error was accepted by the delegate as the text of the From 888 was prepared before the wedding.
The Tribunal has been provided with multiple additional photographs including photos of the couple together as well as photos of them with friends and family in different settings such as restaurants, kayaking, karaoke, fishing, shopping, camping and birthday parties. As discussed during the hearing, many of the photographs provided were undated and did not indicate the name of family members or friends in the photographs. After the hearing, the representative helpfully provided further copies of all photographs including the date and location of the photo as well as the names of all persons in the photographs. The photographs provided included evidence of baby Harley Phan with her parents not long after her birth on 1 August 2023 together with more recent photographs of Harley together with her parents.
In addition, a range of statements in support of the genuineness of the couple’s relationship have been provided to the Tribunal including: 4 Statutory Declarations from March and April 2021 from Mrs Ngo’s aunt Le Bich Van (based in Melbourne) as well as Mr Phan’s best friend Tran Hong Dung Ngo, his brother Van Hoa Phan and his mother Thi Tien Nguyen; and, a signed and detailed Notarised Statement dated 28 January 2021 in Vietnamese together with an English translation thereof from Mrs Ngo’s parents (Ngo Trong Duc and Nguyen Thi Thanh Huyen) in Vietnam.
After the hearing, Mr Phan’s brother Van Hoa Phan also provided a letter of support addressing his intention to buy out Mr Phan’s interest in the Austral property and, relevantly, he also confirms the genuineness of his brother’s long-standing spousal relationship with Mrs Ngo. Further, Mrs Ngo provided a signed but undated statement from her sister Thi Ha Mi Ngo confirming that her sister is happily married to Mr Phan and they are committed parents to their baby daughter Harley.
As noted above, evidence has been provided of the parties’ respective Tax Returns as lodged with the ATO for the period ending 30 June 2018 to 30 June 2023 affirming they have declared their spousal relationship to the ATO. Evidence has also been provided of the couple’s registration with social clubs including the Mekong Club and the Marconi Club.
Having regard to evidence provided, including oral evidence at the hearing, the Tribunal is satisfied that: the parties clearly represent themselves to other people as being married to each other; and, multiple family members as well as friends have confirmed the genuineness of their loving and ongoing spousal relationship. As such, the Tribunal is satisfied the couple have demonstrated the social nature of the spousal relationship as at the time of lodgement of the visa application and as at the time of this decision.
Nature of persons' commitment to each other: reg 1.15A(3)(d)
In its consideration of the nature of persons' commitment to each other the Tribunal is required to consider: the duration of the relationship; the length of time they parties have lived together; the degree of companionship and emotional support they draw from each other; and, whether they see the relationship as long term.
As noted above, Mrs Ngo and Mr Phan met on 27 May 2017 at a family gathering at the Cabramatta bowling club. They kept in touch after Mr Ngo returned to Melbourne. Following Mr Phan visiting Mrs Ngo in Melbourne and then her coming back to Sydney to see him, they decided to travel to Vietnam together to meet their respective families. During the hearing, Mr Phan confirmed he proposed to Mrs Ngo after she arrived in Sydney the day they left to visit family in Vietnam. After short stays with their respective families in Vietnam, the couple returned to Australia and were married on 12 August 2017. The wedding was held in Fairfield. Multiple photographs with family and friends at the wedding and celebrations thereafter have been provided to the Tribunal, as has evidence of the NSW Marriage Certificate.
In their evidence lodged with the Department and the Tribunal, Mrs Ngo and Mr Phan state that they have been living together since November 2017, that is, for more than 6 years now. Evidence that the couple started living together in Mount Prichard with Mr Phan’s brother and his wife is referred to above as is evidence of their subsequent residence with Mr Phan’s parents in Prince Street, Canley Heights then a short 6 month stay at a studio apartment in Torrens Street, Canley Heights before moving to lease a unit in Sackville Street, Canley Vale and then an apartment in Equity Place, Canley Vale where the couple currently live with their daughter. Mr Phan and Ms Ngo told the Tribunal that they spent 3 weeks in January and February 2023 travelling to visit family again in Vietnam and also holiday in Cambodia. The couple’s travel together at this time is confirmed by Boarding Passes provided to the Tribunal and by the Department’s Movement Records.
Mrs Ngo gave birth to the couple’s daughter Harley Phan on 1 August 2023 at Fairfield District Hospital. A copy of her NSW Birth Certificate has been provided to the Tribunal. The Tribunal will provide a copy of Harley Phan’s Birth Certificate to the Department.
Based on the evidence provided, the Tribunal is satisfied that the couple have been in a relationship since June 2017. They have provided their NSW Marriage Certificate and now have a child together, a daughter born on 1 August 2023. The Tribunal accepts the couple’s respective family members’ awareness and endorsement of their relationship as well as the recent birth of their daughter which strongly suggests that the couple intend their relationship to be long term.
The Tribunal accepts the claims of Mrs Ngo and Mr Phan that, throughout the couple’s more than 6 years together, they have provided emotional support and companionship to each other. It also accepts that they see their relationship as long-term. Having regard to the evidence provided, including oral evidence at the hearing, the Tribunal is satisfied that the nature of the parties’ commitment to each is indicative of a couple in a spousal relationship at the time of lodgement of Mrs Ngo’s Subclass 820 visa application and, further, they continue to be in a spousal relationship at the time of this decision.
Overall assessment of the spousal relationship
Based on the extensive evidence as to the parties’ financial and social aspects of their relationship as well as the nature of their household arrangements and their strong commitment to each other, the Tribunal is satisfied that both at the time of application and at the time of its decision Mrs Ngo and Mr Phan respectively were, and are, in a genuine spousal relationship.
Having regard to evidence provided, the Tribunal is satisfied that Mrs Ngo and Mr Phan are married to each other under a marriage that is valid for the purposes of the Act. It also is satisfied that the parties have 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, further, that they have lived together since November 2017 when Mrs Ngo moved permanently to Sydney. In addition, the Tribunal is satisfied that they continue to live together and that they do not live separately and apart on a permanent basis. Accordingly, the requirements in s 5F(2)(a) – s 5F(2)(d) of the Act are met, both at the time of application and at the time of this decision.
Conclusion
Based on evidence provided, the Tribunal is satisfied that at the time of application Mrs Ngo was in a spousal relationship with her sponsor Mr Phan as required by cl 820.211 of Schedule 2 to the Regulations.
Further, the Tribunal is satisfied that, at the time of this decision, the parties continue to be in a spousal relationship as required by cl 820.221 of Schedule 2 to the Regulations.
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 Malyon

Member
ATTACHMENT - Extracts from Migration Act 1958 and Migration Regulations 1994
Migration Act 1958
5F 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 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).
Schedule 2
Subclass 820 -- Partner
820.21- Criteria to be satisfied at time of application
820.211 (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 decision
820.221 (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

[2024] AATA 461

19 January 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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Natural Justice