Nguyen (Migration)

[2022] AATA 3045

Nguyen (Migration) [2022] AATA 3045 (5 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Thi Ai Lien Nguyen

REPRESENTATIVE:  Ms Carina Ford (MARN: 9802862)

CASE NUMBER:  1834356

HOME AFFAIRS REFERENCE(S):          BCC2017/4639708

MEMBER:David Crawshay

DATE OF ORAL DECISION  5 May 2022

DATE OF WRITTEN STATEMENT:         12 July 2022

PLACE OF DECISION:  Melbourne

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 12 July 2022 at 3:50pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – joint company and property ownership – joint bank accounts – statutory declarations recognising relationship – joint travel – companionship and emotional support – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.15

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 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 5 December 2017 on the basis of her relationship with her 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(2)(a) because she did not meet the definition of spouse under s.5F of the Act.

4. The applicant appeared before the Tribunal on 9 May 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, as well as from Mr Nick Lakovic, who is a childhood friend of the sponsor, Mr Manuel Riani, the sponsor’s work colleague, Ms Isabelle Madrid, the sponsor’s daughter, Mr David Hiep Phan, a GP who is a work colleague of the applicant, Ms Isabelle Madrid, the sponsor’s daughter, and Mr Nhat Huy Huynh, the applicant’s son.

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

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

   Consideration of claims and evidence

7. The issue in the present case is whether the applicant was the spouse of the sponsor at the time of application and whether she continues to be his spouse at the time of this decision.

   Whether the parties are in a spouse or de facto relationship

8. 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 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 applicant claims to be the spouse of the sponsor who is an Australian citizen.

9. “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 r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.

   Are the parties validly married?

10. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties have submitted a certificate in respect of a marriage that took place on 26 October 2017. The certificate states that the marriage was solemnised in accordance with the Marriage Act 1961. The Tribunal accepts that this document is genuine and that the parties are free to marry each other. 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

11. The evidence in front of the Tribunal is that the parties have joint ownership of a property in Sunshine that they purchased in July 2019. A contract for sale was provided along with a mortgage form showing the parties as mortgagees over the Sunshine property and statements from a home loan account showing a balance in debit of $222,388 as at 31 December 2021. The Tribunal accepts that these documents are genuine and accepts that the parties are joint owners of that property. It gives this evidence significant weight as evidence of the parties having joint ownership of real estate as well as evidence that they have a joint liability in the form of the mortgage over the Sunshine property.

12. The parties provided statements from two joint bank accounts – one with the Commonwealth Bank and the other with HSBC – for the period from 3 January 2018 to 30 December 2021, although unhelpfully at least the statements in respect of the Commonwealth Bank account only show the first page and therefore evidence only limited transactions. Nevertheless, the statements do show deposits from both parties into the bank accounts and payments for groceries, entertainment and some utilities. It gives this evidence weight as evidence of the pooling of financial resources as well as the sharing of day-to-day household expenses.

13. The Tribunal has sighted an ASIC company search that lists the parties as directors of and shareholders in a private company (with a third party). They are also listed as contacts of that company on its website. The Tribunal accepts based on this evidence that the parties are jointly involved in a company and accepts that they owe each other legal obligations through this association. It gives this evidence some weight.

14. Having made the above findings, the Tribunal accepts that the evidence of the financial aspects of the relationship indicates that the parties have been in a genuine and continuing relationship since at least early-2018. Although this evidence relates to after the time of application, albeit slightly, the Tribunal accepts that this evidence tends logically to show that the circumstances underpinning this evidence existed at an earlier time.

    Nature of the household

15. The applicant claims to have some role in the care and support of the sponsor’s daughters from his previous relationship. While the Tribunal notes photographs submitted that show the applicant with the sponsor’s daughters, it does not consider this evidence alone to be indicative of her providing them care and support, especially in light of the fact that they live with their mother and not with the sponsor. This evidence is given limited weight.

16. In terms of the parties’ living arrangements, the Tribunal notes that they had previously provided a tenancy agreement over a property in Sunshine West dated October 2017, as well as utility bills addressed to both of them at that address. They have since provided further correspondence from government agencies, local government, utility companies, their employers and other entities addressed to one or both parties at that address as well as at the Sunshine address. This evidence is in addition to the documents evidencing their joint ownership of the Sunshine address discussed above.

17. The Tribunal has considered that there is a preponderance of evidence that consistently shows the parties as living at the same address. It has further considered that some of this evidence is from government agencies such as the ATO and ASIC for which there are strong penalties for giving false information. For these reasons, the Tribunal accepts this evidence and accepts that it firmly points to the parties living together for a period beginning in October 2017.

18. Turning lastly to the sharing of the responsibility for housework, it was submitted that the parties both contribute to household duties, with the applicant mainly cooking and cleaning and the sponsor undertaking other domestic chores and “household paperwork”. The Tribunal accepts this evidence and gives it some weight.

19. Having considered the evidence and made the above findings, the Tribunal accepts that the nature of the parties’ household points to them being in a genuine and continuing relationship and to them living together since October 2017.

    Social aspects of the relationship

20. The Tribunal has considered evidence in the form of numerous statutory declarations from family members, friends and colleagues of both parties. The declarations are expansive and offer cogent reasons why their authors believe that the parties’ relationship is genuine and continuing. The Tribunal has had particular regard to declarations from the sponsor’s family and notes that these people are all very supportive of the parties’ relationship. It accepts based on these declarations that they are recognised by other people as being married to each other.

21. The Tribunal has also considered photographs of the parties in various social situations in Australia and Vietnam, including at their wedding in October 2017 which was attended by members of the sponsor’s family such as his parents and his daughters. It has considered that at other times the parties have represented themselves to each other’s work colleagues and to their friends, as well as to the applicant’s family in Vietnam. The Tribunal accepts based on the overall preponderance of the photographs that the parties represent themselves as being married to each other to a large number of their families, friends and work colleagues.

22. The Tribunal has considered documents that show the parties having planned and undertaken joint social activities. These activities include trips to Vietnam and Thailand, as well as to Mildura to visit the sponsor’s parents and Perth to visit the sponsor’s other family living there. Photographs also show that the parties have engaged and continue to engage in church-related activities. The Tribunal accepts this evidence and accords it weight.

23. In light of the evidence and the findings made, the Tribunal accepts that the social aspects of the relationship indicate that the parties’ relationship has been genuine and continuing at all relevant times.

    Nature of the parties’ commitment to each other

24. The parties were questioned at hearing on the inception and development of their relationship. Their evidence was that they met at a party while the sponsor was in Vietnam in January 2017 and soon developed a friendship. They claim that the applicant invited the sponsor to talk to her class at the school where she taught, and that they met for coffee afterwards. The parties claim to have met again in June 2017 in Vietnam and to have travelled to Thailand where they stayed in Changmai and travelled by train from there to Bangkok. It was during this trip that their relationship was said to have developed. The parties claim that the applicant then made two trips to Australia – in August and September 2017 – and that during the second of these trips the sponsor proposed to her. The parties married in late-October 2017. As above, they claim to have moved in together at that time – a claim that is accepted by the Tribunal.

25. The Tribunal notes the testimony given by the parties at hearing, which was cogent and sufficiently particularised. It notes that the parties’ testimony was consistent with each other and consistent with the evidence given in documents previously submitted. For these reasons, the Tribunal accepts that it genuinely reflects the events that occurred in the inception and development of the parties’ relationship. It is given substantial weight.

26. The Tribunal has considered evidence that the parties draw companionship and emotional support from each other. This evidence includes details of the sponsor helping the applicant following an accident involving a tram and by supporting her daughter to come to Australia. The Tribunal has also considered evidence showing that the parties have supported each other in their respective jobs. It accepts that this evidence is overall indicative of the parties drawing a substantial degree of companionship and emotional support from each other.

27. Lastly, the Tribunal has had regard to evidence from the parties about their plans for the future, including that they intend to buy a larger house together. It gives this evidence weight.

28. The Tribunal has considered the overall evidence pertaining to the nature of the parties’ commitment to each other. Based on this evidence and on the findings made, it accepts that the parties have had a mutual commitment to a life together as a married couple to the exclusion of all others, that their relationship has been genuine and continuing, and that they have been living together at the time of application and at the time of this decision.

    CONCLUSION

29. On the basis of the above evidence and findings, the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made. The parties have had a mutual commitment to a shared life as a married couple to the exclusion of all others, their relationship has been genuine and continuing, and they have lived together at the time of application. Therefore, the applicant meets cl.820.211(2)(a).

30. The Tribunal is satisfied that the applicant was sponsored by the sponsor at the time of application pursuant to cl.820.211(2)(c)(i). Lastly, the Tribunal accepts that the visa application was made within 28 days after the applicant’s previous substantive visa ceased and she is not subject to the Schedule 3 criteria under cl.820.211(2)(d)(ii). Therefore, the applicant meets cl.820.211(2).

31. Because the applicant was not the holder of a Subclass 771 (Transit) visa at the time of application, she meets cl.820.211.

32. The applicant continues to meet the requirements of cl.820.211(2) at the time of decision. She therefore meets cl.820.221(1)(a).

33. There are no sponsorship limitations applicable to the sponsor. Clause 820.221(4)(a) is met and because the sponsor has consented to the disclosure of any relevant conviction, cl.820.221(4)(b) is met. Clause 820.221(4) is met in its entirety and therefore cl.820.221 is met.

34. 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

35. 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

    ·cl.820.221 of Schedule 2 to the Regulations.

    David Crawshay
    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).