Nguyen (Migration)

[2024] AATA 3925

Nguyen (Migration) [2024] AATA 3925 (20 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Trong Tuan Nguyen

REPRESENTATIVE:  Mr Quang Nhat Nguyen (MARN: 0746874)

CASE NUMBER:  2001214

HOME AFFAIRS REFERENCE(S):          BCC2018/3598417

MEMBER:Edward Howard

DATE:20 June 2024

PLACE OF DECISION:  Brisbane

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(2) of Schedule 2 to the Regulations

·cl 820.221(1) of Schedule 2 to the Regulations

Statement made on 20 June 2024 at 2:29pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – financial, household and social aspects of relationship and nature of commitment – validly married – joint bank account and assets – length of relationship and young child – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 820.211(2)(a), 820.221(1)

CASES
Ally v MIAC [2008] FCAFC 49
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
MIEA v Poche (1980) 4 ALD 139

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 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 21 September 2018 on the basis of his relationship with his sponsor. At that time, Class UK contained only one Subclass: Subclass 820 (Partner). The 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 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 820.211.

4. The applicant appeared before the Tribunal on 23 May 2024. The Tribunal Hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review.

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

   BACKGROUND

6. The review applicant is Mr Trong Tuan Nguyen, aged 33 years, a citizen of Vietnam and the sponsor is Ms Thi Kim Khe, aged 24 years, an Australian Permanent Resident. The parties claimed to have known each other since January 2018 and married on 15 July 2018.

   ISSUES AND LAW

7. There is a two stage process for onshore Partner visas. A visa applicant must first hold a provisional visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a permanent visa. The grant of a permanent visa would generally depend on whether the relationship has continued for a period of at least two years. In this matter, the Tribunal is considering the first, temporary stage.

8. Where the Tribunal is considering a criterion that requires the definition of spouse or de facto partner to be met at the time of the visa application, the information supplied in relation to the reg 1.15A(3) matters may relate to circumstances after the time of application. In forming a view of the relationship at the time of application, the Tribunal must consider all relevant evidence, which may include evidence of events after the date of application insofar as it assists in the task of determining whether the visa applicant and the sponsor were in a spousal relationship at the time of the application. Evidence of events after 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.[1] The Tribunal observes this to be a matter where the visa applicant submitted limited documentary evidence in support of his visa application to the Department of Home Affairs and then furnished the Tribunal with further evidence that was unavailable to the primary decision maker.

   [1] Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139 at [24] per Deane J which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time; and see also Bretag v IRT [1991] FCA 582 at [13]–[15].

9. The issue in the present case is whether at the time of the visa application and the time of this decision, the review applicant is the spouse of the sponsor.

   Whether the parties are in a spouse or de facto relationship

10. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the review applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the review applicant claims to be the spouse of the sponsor who is an Australian Permanent Resident.

11. 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 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) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

12. 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?

    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.

13. The evidence of the parties is that the review applicant works as a plumber and the sponsor for the National Australia Bank. The parties maintain a joint bank account with ANZ bank. The parties deposit their respective wages into the joint account, from which their expenses are paid including rental, utilities, groceries, transportation and personal and miscellaneous expenses.

14. The parties have provided extensive financial information including their bank accounts and statements for their joint ANZ Bank account

15. The Tribunal finds that in relation to the financial aspects of the relationship, the parties do not have joint ownership of real estate, however they have purchased two vehicles, including a truck for the review applicant’s work. The total cost of these joint assets is approximately $60,000. The parties have shown evidence of the pooling of financial resources and their sharing of regular expenses.

16. The Tribunal is satisfied that the financial arrangements are consistent with the financial situation of a committed and genuine spousal relationship. The Tribunal weighs the financial aspects of the relationship in favour of the review applicant.

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

17. The parties commenced living together following their marriage, a period of approximately six years. They are currently residing in Canley Heights, New South Wales.

18. The parties have a child born 18 February 2021. They have provided evidence of their joint responsibility for the care and support of their child. The parties also share their household work and responsibilities.

19. The Tribunal is satisfied that the parties’ household and living arrangements are consistent with that of a married couple in a genuine relationship. The Tribunal weighs consideration of the household aspects of the relationship in favour of the review applicant.

    Social aspects of the relationship – including whether parties represent themselves to other people as being in a de facto relationship with 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.

20. The evidence of the parties is that they lived together from the time of their marriage in July 2018. It is the evidence of the parties that they are socially accepted as a married couple by family, friends and acquaintances and they have provided various evidence, including statutory declarations and photos to support this claim.

21. Having considered the evidence, the Tribunal is satisfied that the parties represent themselves to other people as being married to each other, that they enjoy the opinion of friends and family concerning their relationship and that they plan and undertake joint social activities. The Tribunal weighs the social aspects of the relationship in favour of the review applicant.

    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.

22. The parties claim to have known each other since January 2018 and married on 15 July 2018.

23. The parties commenced living together following their marriage, a period of approximately six years. They are currently residing in Canley Heights, New South Wales.

24. The parties have a child born 18 February 2021. They have provided evidence of their joint responsibility for the care and support of their child. The parties have also provided evidence of their companionship and emotional support for each other.

25. The evidence supports a finding that the parties are in a genuine and continuing spousal relationship, showing strong commitment to each other and clearly see the relationship as long-term. The Tribunal weighs the nature of the commitment in favour of the review applicant.

    Overall Conclusions

26. The Tribunal has considered separately and as a whole, the evidence before it regarding each of the prescribed matters under r. 1.15A, that is, the financial, household, social and commitment aspects of the relationship.

27. In forming a view, the Tribunal is mindful of the authority in  Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139 at [24] per Deane J which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time; and see also Bretag v IRT [1991] FCA 582 at [13]–[15].

28. Having carefully considered all the evidence and for the reasons above, the Tribunal is satisfied that at the time of application, the parties 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 that they live together and have done so since they were married. The Tribunal is therefore satisfied the requirements of section 5F of the Act were met the time of the visa application.

29. The Tribunal is further satisfied that at the time of this decision the parties continue to have a mutual commitment to a shared life to the exclusion of all others and that the relationship between them has been and remains genuine and continuing. The Tribunal is also satisfied that they have lived together and not separately and apart on a permanent basis since their marriage. The Tribunal is therefore satisfied the requirements of section 5F(2) of the Act are met at the time of this decision.

30. The Tribunal is therefore satisfied that the parties relationship fulfilled the criteria contained in cl 820.211(2)(a) of the regulations at the time the visa application was made and at the time of this decision.

31. Pursuant to cl 820.221(1), in order to be eligible for the grant of a Subclass 820 (UK) visa, the review applicant must also continue to meet the requirements of cl 820.211(2) at the time of this decision. Having regard to the evidence before the Tribunal, the Tribunal is satisfied that the review applicant continues to meet the requirements of cl 820.211(2), hence satisfying the criteria in cl 820.221.

32. Therefore, the Tribunal finds that the review applicant meets the requirements of clauses 820.211(2) and 820.221(1).

33. 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

34. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the review applicant meets the following criteria for a Subclass 820 (partner) visa:

    ·cl 820.211(2) of Schedule 2 to the Regulations

    ·cl 820.221(1) of Schedule 2 to the Regulations

    Edward Howard
    Member

    
    

    ATTACHMENT - Extract from 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).