Nguyen (Migration)

[2021] AATA 5545

Nguyen (Migration) [2021] AATA 5545 (15 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Do Loc Nguyen

CASE NUMBER:  1811135

HOME AFFAIRS REFERENCE(S):          BCC2016/2026982

MEMBER:Kira Raif

DATE:15 December 2021

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(2)(a) of Schedule 2 to the Regulations; and

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

Statement made on 15 December 2021 at 11:00am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – 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 820.211, 820.221

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 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 13 June 2016 on the basis of his relationship with his sponsor. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211 and cl. 820.221 because the delegate was not satisfied the applicant was the spouse of the sponsor. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 15 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. At the time the application was made, 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).

5. 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.

6. ‘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). 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?

7. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant provided with his application a copy of the marriage certificate showing the couple were married in NSW in April 2016. There is nothing to suggest the marriage was not valid. On the basis of that evidence, the Tribunal is satisfied that 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?

8. The applicant and sponsor presented evidence to the delegate concerning the various aspects of their relationship and there is additional evidence before this Tribunal. The Tribunal has also had the benefit of the couple’s oral evidence and found them to be truthful and credible witnesses.

9. There is evidence before the Tribunal concerning the couple’s financial arrangements. The Tribunal accepts that they purchased a business together, although only the applicant’s name appears on the business due to the sponsor’s debt, but the sponsor acted as a guarantor. They operate a business together and it constitutes a joint asset. The applicant also provided to the Tribunal evidence of having paid a deposit for a property. The Tribunal accepts that the applicant and sponsor operate a joint account, and have been doing that since the relationship commenced. The Tribunal accepts that the applicant and sponsor have joint ownership of assets of joint liabilities. They also presented evidence of joint purchases and of having named each other as beneficiaries on the wills. The Tribunal accepts that the parties share the household expenses and pool their resources. The Tribunal accepts that there is a substantial degree of financial interdependence.

10. The couple have been living with the sponsor’s parents since the marriage, initially with her father and later with her mother. The Tribunal accepts that they have established a joint household, although they have limited domestic responsibilities due to the nature of their living arrangements.

11. There is evidence concerning the social aspects of the relationship, including social photographs and statements from third parties. The sponsor’s father was also available to give oral evidence to the Tribunal. The parties’ evidence is that their wedding in Australia was attended by relatives and friends, including the applicant’s relatives who travelled to Vietnam. There is also evidence that the couple travelled together to Vietnam on two occasions, in 2017 and 2019, to meet the sponsor’s family and friends. The Tribunal accepts that the applicant and sponsor represent themselves to others as being in a genuine relationship and that their relationship is viewed by others as being genuine and committed. The Tribunal accepts that they plan and undertake joint social activities.

12. The relationship has been in existence for over five and a half years. The Tribunal accepts that the applicant and sponsor rely on each other for comfort and emotional support and that they view their relationship as a long term one. They described the plans they have made for the future and the Tribunal is satisfied they have given a meaningful thought to their future together.

13. While there may not have been sufficient evidence before the delegate, there is considerably more evidence before the Tribunal and, by now, the relationship has been in existence for a longer period. Having regard to the entirety of the evidence before it, the Tribunal is satisfied the applicant and the sponsor have a mutual commitment to shared life as husband and wife to the exclusion of others. The Tribunal is satisfied their relationship is genuine and continuing. The Tribunal is satisfied they live together. On the basis of the above the Tribunal is satisfied that the requirements of s 5F(2) are met at the time the visa application was made and the time of this decision. Therefore the applicant meets cl 820.211(2)(a) and cl 820.221(1)(a).

    Conclusion

14. 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

15. 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)(a) of Schedule 2 to the Regulations; and

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

    Kira Raif
    Senior Member