Ngo (Migration)

[2024] AATA 467

Ngo (Migration) [2024] AATA 467 (18 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Lan Ngo

VISA APPLICANTS:  Mr Van Tuyen Nguyen
Mr Ngoc Truong Son Nguyen
Miss Ngoc Mai Nguyen

REPRESENTATIVE:  Ms Myyen Tran

CASE NUMBER:  1907738

DIBP REFERENCE(S):  BCC2018/3902435

MEMBER:Mila Foster

DATE:18 January 2024

PLACE OF DECISION:  Sydney

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 309.211 of Schedule 2 to the Regulations

·cl 309.221 of Schedule 2 to the Regulations

Statement made on 18 January 2024 at 12:04pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – subclass 309 – Tribunal accepts that the marriage was valid – lived together when the review applicant visited Vietnam – parties have now been married for more than 5 ½ years –  parties are in a genuine spousal relationship – parties are committed to one another – parties represent themselves as a couple in a genuine and continuing relationship –  decision under review remitted     

LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, r 1.15, 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 25 March 2019 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 primary visa applicant) applied for the visa on 24 June 2018 on the basis of his spouse relationship with the review applicant, who sponsored him for the visa. The second and third named visa applicants (the secondary visa applicants) applied for the visa on the basis that they were members of the family unit of the primary visa applicant. At the time the visa application was made, 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 who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa to the primary visa applicant on the basis that he did not satisfy cl 309.211 because there was insufficient evidence to demonstrate that he was the spouse of the review applicant. Consequently, as the visa applications of the secondary visa applicants depended on the outcome of the primary visa applicant’s application, they were refused visas.

4. The review applicant appeared before the Tribunal in person on 12 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the primary visa applicant by telephone.

5. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   RELEVANT LAW

7. 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.

8. ‘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 of the relationship, the nature of the parties’ household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the primary visa applicant and review applicant (the parties) were spouses at the time the visa application was made and continue to be spouses.

   Outline of evidence

10. The evidence before the Tribunal includes the Department of Home Affairs file relating to the visa application,[1] documentary and photographic evidence presented on review, and the oral evidence given at the hearing.

    [1] Department file number BCC2018/3902435 (DF).

11. Information on the Department file includes a written record of a telephone interview conducted with the primary visa applicant on 18 December 2018 as well as brief and essentially identically worded statutory declarations from the parties about the development of their relationship.[2]

    [2] Statutory declarations made on 22 June 2018.

12. While the many pages of documentary evidence and photographs submitted to the Department and the Tribunal appeared to relate to some of the matters referred to reg 1.15A(3), the evidence was not accompanied by written submissions or statements which addressed each of the matters in reg 1.15A(3) or addressed the issues raised by the delegate in the decision record. Thus, while the parties claimed to have been married for more than 5 ½ years by the time this matter was constituted the Tribunal did not have detailed information about these aspects of the parties’ relationship.

13. The Tribunal hearing was almost 3 hours long. The Tribunal questioned the parties at length about their relationship. The Tribunal found their evidence to be specific and forthright and found them to be credible.

14. The delegate drew adverse inferences from what was said to be gaps in the primary visa applicant’s knowledge about the review applicant. The Tribunal did not regard some of those matters to be significant. The Tribunal asked the parties about the other matters at the hearing and was satisfied with the evidence they gave.

    Background and summary of relationship

15. It is claimed that the review applicant is a 60-year-old Australian citizen by grant who was born in Vietnam and settled in Australia in 1990.

16. It is claimed that the primary visa applicant is a 45-year-old Vietnamese citizen and resident.

17. The parties claim that they met through the primary visa applicant’s brother who lives in Australia and is a friend of the review applicant. They claim the primary visa applicant contacted the review applicant by phone on 14 October 2016 and the parties maintained telephone contact with each other after that.

18. The parties claim the review applicant went to Vietnam and they met in person on 10 September 2018. The primary visa applicant is said to have proposed to the review applicant over the phone in March 2018. The parties claim the review applicant went to Vietnam again in May 2018 and they married on 18 May 2018. The review applicant is said to have subsequently returned to visit the primary visa applicant in early 2019 and in June 2022. The parties claim they kept in touch between visits via phone. They claim that when the review applicant visited the primary visa applicant they lived together either at his residence, the residence of one of the review applicant’s brothers, and in hotels. 

19. The review applicant claims she had previously been in a de facto relationship with Van E Tran for almost 20 years which ended in 2010. She claims they had 5 children together, all of whom are Australian citizens and residents.

20. The primary visa applicant claims he was previously married to Thi Thu Pham. He claims they divorced in 2014 and had two children – the secondary visa applicants. According to their birth certificates, the second named visa applicant is 18 years old and the third named visa applicant is 15 years old.  The primary visa applicant claims his son has lived with him since the primary visa applicant’s divorce and his daughter began living with him in May 2017.

    Does the primary visa applicant satisfy cl 309.211 and cl 309.221?

21. It is claimed that the primary visa applicant has been the spouse of the review applicant, who is an Australian citizen, since they married on 18 May 2018.

    Review applicant’s citizenship

22. Submitted in support of the visa application was a copy of the biodata page of an Australian passport issued to the review applicant on 17 August 2017 which states that she is an Australian national. The Tribunal thus accepts that the review applicant is an Australian citizen.

    Are the parties validly married?

23. Submitted in connection with the visa application was a marriage certificate issued by the Vietnamese authorities which indicates that the parties’ marriage was registered on 18 May 2018.

24. The review applicant claims that prior to marrying the primary visa applicant she had not been married and had only had one de facto relationship with Van E Tran. Submitted in support of the visa application was a statutory declaration made by one of the review applicant’s sons, Tommy Tran. Accompany the statutory declaration was the son’s birth certificate which states that the review applicant and Van E Tran are his parents, lists four other children of his parents’ relationship and indicates his parents had not married. This supports the review applicant’s claim that her relationship with Mr Tran was a de facto relationship. There is no evidence before the Tribunal to undermine the review applicant’s claim that her relationship with Mr Tran ended in 2010 or that she had no other relationships.

25. Submitted in support of the visa application was a divorce order made by a Vietnamese court on 22 July 2014 in relation to the primary visa applicant’s marriage to Ms Pham.

26. The Tribunal is satisfied on the evidence before it that the parties were free to marry each other on 18 May 2018 and that they were married to each other on that day under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).

    Consideration of matters in reg 1.15A(3)

27. Financial aspects of the relationship The parties claim they are financially independent; that the primary visa applicant is self-employed in a building demolition business and that the review applicant has worked in a laundry business and is now a cleaner.

28. The parties do not jointly own any assets, do not have joint liabilities, have not pooled their financial resources, or owe any legal obligation to the other party. They have not established a household together and hence have not shared day-to-day household expenses. They claim they would pool their financial resources if the primary visa applicant is granted the visa and settles in Australia.

29. Submitted on review were two money transfer receipts for money the review applicant sent the primary visa applicant. The parties stated at the hearing the money was for the secondary applicants – to encourage them in their studies.

30. The financial aspects of the parties’ relationship are not indicative of a spouse relationship. However, given the parties are financially independent and reside in different countries the Tribunal has not drawn adverse conclusions from the financial aspects of their relationship.

31. Nature of the household The parties do not have joint responsibility for the care and support of any children. They have not established a household together. The primary visa applicant claims and documentary evidence indicates that he lives with his children at his parents’ home.[3] The applicant claims she previously lived with two of her sons, then one of her daughters and now lives alone. The parties claim they lived together when the review applicant visited the primary visa applicant in Vietnam. Documentary evidence that they cohabited when the review applicant visited Vietnam include Vietnamese entry and exit stamps in the review applicant’s passport, travel documentation, temporary residence documentation, and a hotel receipt. On the basis of this evidence and the parties’ oral evidence the Tribunal accepts that the parties living arrangements are as claimed and that they lived together when the review applicant visited Vietnam.

    [3] DF, ff.62-63.

32. Social aspects of the relationship The parties claim that they had their wedding at a restaurant in Can Tho city. The delegate considered that the location of the wedding did not follow Vietnamese cultural traditions and drew adverse inferences from this. The Tribunal is of the view that not all people choose to follow cultural norms. The parties explained at the hearing that it was the review applicant’s wish to have the wedding at a restaurant in Can Thio as she is originally from that city and still has family there. The Tribunal accepts this explanation.

33. The parties claim their wedding was attended by 60 guests from both sides of their families including the primary visa applicant’s father and children and the review applicant and two of the review applicant’s brothers. Photographs of what appear to be of the wedding have been presented. Although the photographs were not annotated they indicate that the parties did present themselves to other people as being married to each other.

34. Submitted in support of the visa application were 4 statutory declarations from people who stated that they believed the parties’ relationship was genuine – the review applicant’s best friend and three of her children. The Tribunal has given these statutory declarations some weight but they are far from compelling. The statutory declaration are very brief and the parties stated at the hearing that the review applicant’s children have not met the primary visa applicant. The statutory declarations were made more than 6 ½ years ago and no recent evidence from the parties’ family or friends has been presented.

35. The parties’ oral evidence indicated that they undertook little social activity together when the review applicant visited the primary visa applicant. While they occasionally went out, for example, to temples or for dessert with the secondary visa applicants, they said they mostly preferred to stay home and spend time together. They said the review applicant prepared meals for them as she enjoyed cooking and was a good cook.

36. Submitted on review were some unannotated photographs of the parties alone or with other people who mainly appeared to be the secondary visa applicants. There are no descriptions of when and where the photographs were taken, who appears in them or what social activity they show the parties engaging in. However, they give some little indication that the parties undertook social activity together and with the primary visa applicant’s children.

37. Overall, while there is evidence of the social aspects of the parties’ relationship it falls short of being strong evidence given the length of their marriage.

38. Nature of persons' commitment to each other The parties have now been married for more than 5 ½ years which is a significant period of time. They have cohabited for a total period of about 9 weeks which is a notable period given they reside in separate countries.

39. The parties presented what were said to be records of their telephone communication. Records which were said to be the primary visa applicant’s phone bills did not bear his name or residential address but were for what, according to his visa application, was his phone number. Perhaps they were in the name of his business. The Tribunal is nevertheless prepared to accept that they are the primary visa applicant’s phone bills. While the phone records do not indicate the nature of the communication between the parties they indicate regular communication over many years. Hence the Tribunal has given them some weight.  

40. Tribunal discussed with the parties at the hearing the companionship and emotional support they draw from each other which it found to be persuasive evidence that theirs was a genuine and committed relationship. They both stated that they wished to be reunited and to live together with the secondary visa applicants.

41. The Tribunal is satisfied that the nature of the parties’ commitment to each other indicates that their relationship is genuine and continuing.

    Findings

42. Having regard to the above aspects of the parties’ relationship and the totality of the evidence before it the Tribunal is satisfied that since marrying the parties have had a mutual commitment to a shared life to the exclusion of others, their relationship has been genuine and continuing, and they have not been living separately and apart on a permanent basis. The Tribunal thus finds that the requirements of s 5F(2) are met and that the primary visa applicant was the spouse of the review applicant at the time the visa application was made and at the time of this decision. 

43. Therefore, the primary visa applicant meets the requirements of cl 309.211(2) and hence satisfies clause cl 309.211 and cl 309.221.

    Conclusion

44. As the primary visa applicant satisfies cl 309.211 and cl 309.221 for the visa and the secondary visa applicants were refused visas on the basis that he did not satisfy the primary criteria, the appropriate course is to remit the visa applications to the Minister to consider the primary visa applicant in relation to the remaining primary criteria of the Subclass 309 visa and secondary visa applicants in relation to the secondary criteria of the Subclass 309 visa.

    DECISION

45. 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

    Mila Foster
    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).