NGUYEN (Migration)

[2022] AATA 2944

NGUYEN (Migration) [2022] AATA 2944 (25 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs THI NGOC GIAU NGUYEN

VISA APPLICANTS:  Mr TAO KHANG LE
Mr NGO GIA BAO LE

REPRESENTATIVE:  Mr QUANG NHAT NGUYEN (MARN: 0746874)

CASE NUMBER:  1824455

DIBP REFERENCE(S):  BCC2017/4928672

MEMBER:Russell Matheson

DATE:25 February 2022

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, cl.309.212 and cl.309.213 of Schedule 2 to the Regulations; and

·cl.309.221 of Schedule 2 to the Regulations.

The secondary applicant meets:

·cl.309.311 of Schedule 2 to the Regulations.

Statement made on 25 February 2022 at 1:27pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – financial aspects – nature of the household – social aspects – nature of the commitment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 309.211, 309.221, 309.311

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 Immigration on 31 July 2018 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 applicant) is a male national of Vietnam born in April 1969. He applied for the visa on 22 December 2017 on the basis of their relationship with their sponsor, the review applicant. At that time, 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, 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.309.211 because the delegate was not satisfied that the applicant is the spouse of the sponsor.

4. The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. The review applicant (sponsor) appeared before the Tribunal on 24 February 2022 to give evidence and present arguments. The Tribunal also received oral evidence from applicant and the applicant’s brother living in Australia.

6. The sponsor was represented in relation to the review. The representative attended the Tribunal hearing.

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

   Background

8. The applicant a 52-year-old male from Dong Thap Province, Vietnam. He declares that he divorced his first wife in July 2017. There is a dependent child from this relationship and this child is included in this application.

9. The sponsor is a 50-year-old Australian citizen. She resides in Cabramatta, NSW. According to the information in the application forms, she has one previous marriage.

10. According to information on file and provided to the Department, the sponsor is friends with the applicant’s sister in Australia. On 20 August 2016 the sponsor travelled to Vietnam. The parties met when the applicant came to the sponsor’s family home to collect a present from his sister. The parties met one more time before the sponsor returned to Australia on 17 September 2016.

11. On 12 July 2017 the applicant divorced his former wife. It is claimed that the parties started a relationship on 28 July 2017. The sponsor travelled to Vietnam from 27 September 2017 to 21 October 2017 during which time the parties decided to marry.

12. On 1 December 2017 the sponsor travelled to Vietnam. It is claimed that the wedding ceremony was held on 9 December 2017 and the parties registered their marriage on 15 December 2017. The sponsor returned to Australia on 21 December 2017.

13. On 22 December 2017 this application was lodged. Departmental systems indicate that the sponsor travelled to Vietnam again from 3 July 2018 to 25 July 2018.

14. The sponsor planned a trip to visit the applicant in January 2020 but cancelled the trip due to the COVID-19 pandemic.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the applicant is the spouse of the sponsor as defined in s.5F of the Act.

16. The Tribunal has before it the Departmental file relating to the applicant, its own file, and a copy of the Department’s decision provided by the sponsor to the Tribunal.

17. The evidence the parties provided to the Tribunal is recorded throughout this decision record.

    Whether the parties are in a spouse or de facto relationship

18. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa 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 visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

19. ‘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 visa applicant’s and review applicant’s 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) are effectively questions which must be answered: He v MIBP[2017] FCAFC 206.

    Are the parties validly married?

20. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant provided a copy of the couple’s marriage certificate indicating that their marriage was registered in Dong Thap Province, Vietnam, on 15 December 2017. There is no evidence before the Tribunal to indicate the marriage is not valid. 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).

21. After careful consideration of all of the evidence before it, the Tribunal has reached the conclusion that it is satisfied the applicant is the spouse of the sponsor within the meaning of s.5F of the Act. Below, the Tribunal sets out its consideration of the evidence under the relevant aspects of matters it must take into consideration under r.1.15A(3), and the reasons for its decision.

22. The Tribunal had the benefit of the applicant’s and the sponsor’s and a witness’s oral evidence and a significant amount of additional documentary and photographic evidence. The Tribunal gave all the evidence provided by the parties at the Tribunal hearing and the information contained in the Departmental and Tribunal files due regard. The Tribunal considered the evidence given by the applicant and sponsor to be consistent, persuasive and overall credible.

    Are the other requirements for a spouse relationship met?

    Financial aspects

23. The Tribunal has considered the financial aspects of the relationship including any joint ownership of real estate or major assets, any joint liabilities, the extent of any pooling or sharing of financial resources, whether any person in the relationship owes any legal obligation in respect of the other, and the basis of any sharing of daily household expenses and any combined future financial commitments or plans.

24. The sponsor provided evidence of several money transfer receipts  between September 2017 and March 2019 amounting to a significant amount of funds being transferred from the sponsor to the applicant. The applicant stated that he and his son are living with the sponsor’s family  in Vietnam, and that he utilises the funds for payment of household bills, day-to-day living expenses and his son’s education. The parties provided evidence of the applicant’s son attending university in Vietnam.

25. The parties gave evidence that the applicant and his family paid for their wedding and reception. They further stated that they share and pool their financial resources when the sponsor visits the applicant in Vietnam utilising their own incomes. The parties had a sound knowledge of each other’s financial resources, income, employment, hours worked and daily routine.

26. The applicant and sponsor provided limited evidence regarding the financial aspects of their relationship, including evidence of any pooling of financial resources, the sharing of day-to-day expenses or shared financial commitments for their life together as spouses.

27. The parties have no joint liabilities or major assets together. There is limited evidence before the Tribunal to indicate that the parties share or pool their financial resources. There is no evidence before the Tribunal that one person in the relationship owes any legal obligation in respect of the other. There is little evidence before the Tribunal to support that the parties share day-to-day living expenses or pool their financial resources.

28. The Tribunal accepts there is a degree of difficulty in establishing and sharing financial resources when the sponsor and applicant live in separate countries. The Tribunal finds based on the evidence before it, that the parties have provided a reasonable amount of financial support to each other.

29. The Tribunal places limited weight on this aspect of the relationship.

Nature of the household

1. The Tribunal has considered the nature of the household including any joint responsibility for the care and support of children, if any, living arrangements of the parties and the sharing of the responsibility for housework.

2. A hotel receipt in the joint names of the applicant and sponsor have also been submitted as evidence of cohabitation in Vietnam indicating that the parties rented a hotel room in Mui Ne for one night on 6 July 2017. They gave evidence that they travelled to Thailand on their honeymoon on a four-day tour but provided no evidence of this trip or living together. The Tribunal does not consider that the hotel receipt and honeymoon trip in and of themselves are convincing evidence of cohabitation. The parties claim that they did not cohabitate until after their wedding when they lived at the sponsors family home in December 2017 and when the sponsor visited the applicant in July 2018. The applicant and his son currently reside with the sponsor’s family in Vietnam. The parties claim that when they have lived together, they have shared the household responsibilities and duties such as cleaning, shopping, and cooking.  The sponsor and applicant provided broadly consistent and detailed oral evidence of their activities and living arrangements when they were together in Vietnam living with the sponsor’s family, and the Tribunal found them both genuine.

3. The Tribunal has considered the nature of the household. The Tribunal accepts there is a degree of difficulty in sharing a household and the responsibilities of a household when the applicant and sponsor live in separate countries. The applicant provided documentary evidence (postal receipts addressed to the sponsor) of sending gifts  to the sponsor in Australia. The parties provided limited evidence of any joint responsibility for the care and support of the applicant’s son who is attending university in Vietnam.

4. Based on the evidence provided, the Tribunal is satisfied that the applicant and sponsor have resided together as spouses and that they have future plans to reside together as spouses in Australia.

5. Based on the evidence presented by the parties, the Tribunal accepts that they live together and have established a joint household together and that they share the responsibility for the housework when the sponsor visits the applicant in Vietnam. There is limited evidence before the Tribunal that indicates the sponsor provides care and support to the applicant’s son.

6. The Tribunal places limited weight on this aspect of the relationship.

   Social aspects

7. The Tribunal considered the social aspects of the relationship, including 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 parties plan and undertake social activities.

8. The parties submitted a selection of photographs to the Department and additional photographs to the Tribunal taken of themselves, with friends and family and on different social occasions. The photographs indicate that they have undertaken some joint social activities, have been in the company of each other’s friends and families and have travelled together in Vietnam and Thailand. They have also provided photographs of their wedding ceremony and reception, wedding card and receipt for a wedding gift from the applicant’s siblings and a congratulations card from the People’s Committee where they registered their marriage. I give some weight to the evidence submitted as evidence that there is a level of social recognition that their relationship exists. The Tribunal has given significant weight to the submitted photographs as evidence of the social aspects of the claimed relationship.

9. The parties also provided statutory declarations from the applicant’s younger brother and the sponsor’s friend in Australia. The Tribunal gives some weight to the applicant’s sibling’s statement and limited weight to the sponsor’s friend’s statement as she has never met the applicant in person or seen the parties together. The applicant’s younger brother attended the Tribunal hearing and gave detailed and consistent evidence regarding the parties’ relationship particularly in relation to the inception and development of the relationship over a significant period of time. The Tribunal found his evidence genuine and credible. The Tribunal found the parties’ oral evidence genuine and persuasive regarding the social aspects of their relationship.

10. Overall, the Tribunal accepts the applicant and the sponsor plan and undertake social activities and travel together. The Tribunal is satisfied that the parties represent themselves to family, friends and other people as being in a marital relationship. The Tribunal is satisfied that family, friends and relatives view the relationship as a genuine and committed one.

    Commitment

11. The Tribunal has considered the nature of the parties’ commitment to each other, including the duration of the relationship, the length and time the parties have lived together, the degree of companionship and emotional support they provide each other, and whether the parties view the relationship as a long-term one.

12. The parties claimed to have first met in August 2016 after delivering a gift from her friend in Australia (the applicant’s sister) to another sister living in Vietnam. They started a relationship shortly after the applicant divorced his first wife in July 2017. The parties were married in December 2017. The parties provided a copy of their marriage certificate. The Tribunal accepts the parties are lawfully married. The parties have been in a relationship for more than four years.

13. The parties presented limited documentary evidence of continued daily contact during periods of separation and a sound knowledge of each other’s lives, employment, financial resources, family, living arrangements, health issues, personal history, and future together. The evidence of communication between the parties is significant and the Tribunal considers the parties’ knowledge of one another and their everyday concerns is a function of this communication. The Tribunal notes that the sponsor has travelled to Vietnam on three occasions and had planned another trip in 2020 that was cancelled due to the COVID-19 pandemic. The sponsor provided documentary evidence of the planned trip. The parties also provided individual statements attesting to the genuineness of their relationship and their belief of it being a long-term one. The Tribunal found their statements detailed, convincing and genuine.

14. The parties provided evidence of providing emotional support and care and comfort towards each other during significant events in their lives particularly in relation to the sponsor’s significant health concerns and major surgery.

15. The parties described the immense commitment and empathy they have for each other and  how they have worked together to face and address any problems they have had with the sponsor’s deteriorating health and major surgery during the COVID-19 pandemic. The parties provided detailed information orally and in their individual statements of the intimacy, care, comfort and support they provide to each other.

16. The parties gave evidence of being a mature couple from the same cultural background, and that they have a commitment to both each other and to providing care and support for the applicant’s son and his education, and they wish to establish their family unit in Australia.

17. The couple gave consistent and detailed evidence about their plans for the future. The Tribunal is satisfied that they have discussed their plans and aspirations. The Tribunal is satisfied they view the relationship as a long-term one. The Tribunal places significant weight on the fact that the sponsor when able to is committed to providing care, comfort, and support to the applicant’s son in Australia. They are both committed to the applicant’s sons  education and future development in Australia. That also suggests that they view the relationship as a long-term one. The Tribunal is satisfied they rely on each other for emotional support and companionship.

18. The Tribunal is satisfied that the parties see their relationship as stable, mutually supportive and a long-term one. The Tribunal considers their evidence with regard to their commitment to each other plausible, persuasive, and genuine.

19. The Tribunal is satisfied the applicant and the sponsor provide each other with a degree of companionship and emotional support that is commensurate with a couple being in a genuine and continuing relationship. The Tribunal is satisfied the couple view their relationship as a long-term one.

20. The Tribunal is satisfied, having regard to the totality of the circumstances and the evidence provided, that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others. The Tribunal is satisfied their relationship is a genuine and continuing relationship and that they do not live separately and apart on a permanent basis.

    Findings

21. Based on the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made and at the time of this decision.

1. Given these findings the Tribunal is satisfied that at the time the visa application was made and at the time of this decision the parties were in a spousal relationship. Therefore, the applicant meets cl.309.211(2) and cl.309.221.

2. There is no evidence before the Tribunal that the spouse of the applicant is prohibited from being the sponsor of the applicant. The Tribunal is satisfied that the sponsor at the time of the visa application was an Australian citizen who had turned 18. Therefore, the applicant meets cl.309.212 and cl.309.213. 

3. The secondary applicant is a dependent child studying and living in Vietnam supported by the applicant and sponsor. He is a full-time student wholly dependent upon the applicant for financial support for basic needs such as food, clothing, and shelter. The secondary applicant was wholly reliant upon the applicant for a substantial period immediately before the time of application. The secondary applicant is wholly reliant on the applicant at the time of decision, which is greater than any reliance on any other person or source of support.  

4. The Tribunal is satisfied that the secondary applicant is a member of the family unit of, and made a combined application with, the primary applicant who satisfies the primary criteria in Subdivision 309.21. Therefore, the secondary applicant meets the requirements of cl.309.311 of Schedule 2 to the Regulations.

5. 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 309 visa.

   decision

6. 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, cl.309.212 and cl.309.213 of Schedule 2 to the Regulations; and

   ·cl.309.221 of Schedule 2 to the Regulations; and

   The secondary applicant meets:

   ·cl.309.311 of Schedule 2 to the Regulations.

   Russell Matheson
   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).