Nguyen (Migration)

[2021] AATA 4940

Nguyen (Migration) [2021] AATA 4940 (12 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Anh Tuong Nguyen

VISA APPLICANTS:  Mrs Thi Hong Tham Phan
Mr Phan Anh Khoa To
Miss Phan Ngoc Khanh To

CASE NUMBER:  1930114

DIBP REFERENCE(S):  BCC2018/4313034

MEMBER:Christine Kannis

DATE:12 November 2021

PLACE OF DECISION:  Perth

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(2) of Schedule 2 to the Regulations

·cl.309.221 of Schedule 2 to the Regulations

Statement made on 12 November 2021 at 4:54pm

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – copy of Marriage Certificate provided – parties are validly married – applicants are currently in a genuine spousal relationship– evidence of long-term commitment to a spousal relationship – marriage is valid for the purposes of the Act– decision under review remitted

LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, rr 1.03,1.15, Schedule 2, cls 309.211, 309.221

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 3 October 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 visa applicant) applied for the visa on 3 October 2018 on the basis of her relationship with her 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 meet cl.309.211(2) because the delegate was not satisfied that her relationship with the review applicant met the definition of spouse under the Act.

4. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

5. The review applicant appeared before the Tribunal on 2 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant (by telephone), Ms Tan Thi My Dung Le and Ms Thi Thuy Hang Nguyen. The Tribunal was assisted by an interpreter in the Vietnamese and English languages.

6. The review applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. In accordance with the President’s Direction Conducting Migration and Refugee Reviews (paragraph 8.2), the Tribunal has restricted its review to the particular criterion on which the primary decision was made. 

9. The issue in the present case is whether the relationship between the visa applicant and the review applicant meets the definition of ‘spouse’ in s.5F of the Act.

10. Section 5F of the Act 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 husband and wife 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 as to 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 household and the persons’ commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.

11. Clauses 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.   

12. Prior to the hearing the Tribunal the review applicant provided documentation which included but was not limited a Marriage Relationship Statement from the visa applicant, a Relationship Statement from the review applicant, bank account statements, Individual Tax Returns, photographs and witness statements.

    Are the parties validly married?

13. A Marriage Certificate issued by the Registry of Births, Deaths and Marriages Western Australia (WA) showing the parties were married on 12 June 2018 was provided. On the basis of the written evidence before it, and in the absence of any evidence to the contrary, the Tribunal concludes that the marriage satisfies the requirements for a valid marriage for the purpose of the Act as required by s.5F(2)(a).

    Background

14. The review applicant is an Australian citizen by grant.

15. The visa applicant is a Vietnamese national.

16. The parties claim to have met on 1 January 2016.

17. On 15 April 2017 the parties commenced cohabitation and committed to a shared life together to the exclusion of all others.

18. The parties were married on 12 June 2018.

19. The visa applicant has two children from a previous relationship, aged 21 years and 18 years who are the second and third named visa applicants. The second named visa applicant has been studying in Australia since May 2015.

20. On 19 September 2018 the visa applicant and the review applicant departed Australia and travelled to Vietnam. The review applicant returned to Australia on 19 October 2018.

21. The review applicant departed Australia and travelled to Vietnam on 16 November 2019. He returned to Australia on 2 December 2019.

22. The Tribunal considered the evidence against the r.1.15A(3) factors.

    Are the other requirements for a spouse relationship met?

    Financial aspects

23. The Tribunal considered the evidence in relation to the financial aspects including joint ownership of assets, joint liabilities, any legal obligations owed to the other party, the extent of pooling of financial resources and any sharing of day-to-day household expenses.

24. Statements for an ANZ account in the parties’ joint names for the period from August 2017 to September 2018 were provided however the transactions were limited in number and showed only transfers of funds and none that evidenced a pooling of financial resources or a sharing of household expenses. No bank statements for the period from the time of application to the time of decision were provided.

25. In her Marriage Relationship Statement, the visa applicant said when she was living in Australia with the review applicant, he was employed and she contributed to their day-to-day expenses from her savings.  She said at the time of application she was working as a factory manager however this employment ceased in June 2021. At the time of decision, the visa applicant derives some income from a business partnership involving cosmetics and supplements. In his Relationship Statement and in his oral evidence at the hearing the review applicant gave consistent evidence in this regard.

26. Evidence of money transfers demonstrating that the review applicant sent money to the visa applicant in Vietnam in 2020 and 2021 was provided. The review applicant told the Tribunal he is currently employed and said he sends money to the visa applicant to help her pay for her living expenses and to help pay for the third named visa applicant’s school expenses.

27. There is no evidence indicating that the parties have any joint assets or any other joint liabilities. 

28. The Tribunal accepts that the parties resided in different countries at the time application and time of decision and that they had not established joint financial arrangements and accordingly places minimal weight on this factor. The Tribunal accepts that the review applicant sends money to the visa applicant and places some weight on this financial support as an indicator of a genuine spousal relationship at the time of decision.

    Nature of the household

29. The Tribunal considered the evidence in relation to the nature of the household including any joint responsibility for care and support of children, the parties’ living arrangements and any sharing of housework.

30. A Residential Tenancy Agreement (RTA) for a property at Apara Way, Nollamara WA 6061 Apara Way) was provided. The term of the lease was from 20 January 2017 to 19 January 2018. The parties claim to have lived together at Apara Way from 15 April 2017 to 19 September 2018.  Correspondence addressed to the review applicant in 2017 and 2018 at Apara Way was provided. Statutory declarations made by the visa applicant’s former sister-in-law, Ms Dung Le, were provided in which she said at the beginning of 2017 she helped the visa applicant with paperwork when she moved to Apara Way. She said the review applicant moved in shortly after and the parties lived there together with the visa applicant’s son. An email dated 7 September 2017 from property manager, Ms Vicky Mitchell, was provided. The email was addressed to the visa applicant and the review applicant and was in relation to Apara Way. The Tribunal accepts that the parties cohabited at Apara Way prior to the time of application.

31. Temporary Resident registration evidencing that the review applicant stayed at the visa applicant’s parents’ home in Vietnam when he visited in 2018 and 2019 was provided. In his Relationship Statement the review applicant said when he has visited Vietnam he has stayed at the visa applicant’s home with her parents. He said he and the visa applicant prepared meals, washed dishes and shopped for groceries together. At the hearing the review applicant confirmed that when he has visited the visa applicant in Vietnam he has stayed at her home. He said the visa applicant’s parents and her daughter (the third named applicant) also reside at the home. He told he Tribunal that the visa applicant did the cooking and her parents were responsible for the cleaning. He said he also helped with the cleaning. At the hearing the review applicant confirmed that he was visiting the visa applicant in Vietnam at the time of application.

32. At the time of decision, the parties live in different countries.

33. The Tribunal accepts that the parties reside in different countries and that they have not shared a household together and accordingly places minimal weight on this factor.

    Social aspects of the relationship

34. The Tribunal considered the evidence in relation to the social aspects of the relationship including whether 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 persons plan and undertake joint social activities.

35. The review applicant told the Tribunal that when he and the visa applicant travelled to Vietnam in September 2018, they celebrated their marriage with their families. He said the visa applicant’s parents and children and his siblings attended the wedding. The review applicant told the Tribunal that he introduced the visa applicant to his late father and his siblings in Vietnam. He said he has a very good relationship with the visa applicant’s children, the second and third named visa applicants.

36. The review applicant told the Tribunal that when he has visited the visa applicant in Vietnam they generally stay home together. He said sometimes they went to a restaurant for a meal however the visa applicant is a good cook and they mostly stayed home.

37. A statutory declaration dated 15 September 2018 made by the visa applicant’s friend, Mr Thai Tran Van was provided.  At the time of making the declaration Mr Tran Van had known the visa applicant for three years and had known the review applicant for one year. Mr Tran Van said the visa applicant invited him and his family to her house for a party. His reasons for his belief that the parties’ relationship is genuine and continuing included that he had almost not seen them fight and that they show care and affection towards one another. This document pre-dates the time of application and does not refer to spending time with the parties as a couple after the visa applicant departed Australia.  Given the general nature of the reasons, the Tribunal gives this evidence limited weight.

38. A statutory declaration dated 17 September 2018 made by the visa applicant’s former sister-in-law, Ms Dung Le was provided.  She said she was a witness to the parties’ marriage. Her reasons for her belief that the parties’ relationship is genuine and continuing included that she visits the parties and sees they are quite happy with each other and that the visa applicant has told her that the review applicant shares everything with her.  Given the general nature of the reasons, the Tribunal gives this evidence limited weight. Ms Dung Le also provided an undated witness statement in which she said she witnessed the parties’ marriage in Australia and that she regularly speaks to the visa applicant by telephone. The witness statement appears to have been made after the visa applicant departed Australia. At the hearing Ms Le confirmed the correctness of the information in her witness statement.

39. A statutory declaration dated 13 September 2018 made by the visa applicant’s friend, Mr Tien Nguyen was provided.  He said his family have dinner at the visa applicant’s house sometimes. His reasons for his belief that the relationship is genuine and continuing included that when he sees the visa applicant she is happier and that she has said she feels blessed because the review applicant looks after her when she is sick. This document pre-dates the time of application and does not refer to spending time with the parties as a couple after the visa applicant departed Australia.  Given the general nature of the reasons, the Tribunal gives this evidence limited weight.

40. A written statement dated 20 October 2021 made by the visa applicant’s father, Mr Phan Hong Chien, was provided in support of the genuineness of the parties’ relationship. Mr Chien said he attended the marriage ceremony and referred to the review applicant staying in his home when he has visited the visa applicant in Vietnam. He also said the review applicant loves the second and third named visa applicants. The Tribunal gives this evidence significant weight.

41. An undated witness statement made by the visa applicant’s friend, Ms Thi Thuy Hang Nguyen, was provided. Ms Nguyen said she witnessed the parties’ marriage in Australia and said she can tell their love is genuine. The witness statement appears to have been made after the visa applicant departed Australia. At the hearing Ms Nguyen confirmed the correctness of the information in her witness statement however she was unable to provide reasons for her statement regarding genuine love. The Tribunal gives this evidence minimal weight.

42. Photographs of the parties in social settings with other people were provided. These  included photographs of the parties signing their Marriage Certificate in Australia. A bundle of photographs described as wedding photographs taken in Vietnam on 30 September 2018 were provided. The photographs showed the parties with other people however the other people were not identified and the date the photographs were taken was not indicated. Two of the photographs show what appears to be a screen with the parties’ names on it and “30.09.18”.    

43. A photograph described as “Visiting father-in-law” was provided. The photographs showed the parties and the visa applicant’s parents and children with the review applicant’s father.

44. The review applicant’s Individual Taxation Returns for the years ending 30 June 2017,30 June 2018, 30 June 2019, 30 June 2020 and 30 June 2021 indicating that he declared the visa applicant as his spouse during the relevant financial years were provided.

45. The Tribunal accepts that the parties resided in different countries at the time of application and time of decision. The Tribunal accepts that the parties’ respective families and some friends acknowledge their marriage.  Despite the limited evidence, the Tribunal finds that the parties represented themselves to others as being married to each other at the time of application and continue to do so at the time of decision.   

    The nature of the parties’ commitment

46. The Tribunal considered the nature of the persons’ commitment to each other including the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other, and whether they see the relationship as long-term.

47. The parties have been married for more than three years. Due to the COVID-19 pandemic the review applicant has not been able to visit the visa applicant in 2020 or 2021. He told the Tribunal that he and the visa applicant communicate with each other by Messenger every two or three days and sometimes daily. The visa applicant gave consistent evidence in this regard.

48. The review applicant told the Tribunal that he provides the visa applicant with emotional support by listening to her and encouraging her to be happy, He said he tells the visa applicant he will try and make her happy and will support her and her children. The visa applicant gave generally consistent evidence in this regard.

49. The review applicant told the Tribunal that their future plans include buying a small house in Nollamara. The visa applicant gave consistent evidence in this regard.

    Conclusion

50. The Tribunal records that the parties each gave their evidence in a forthright and spontaneous manner and found them to be credible witnesses. Against this the Tribunal notes that limited evidence of the social aspects of the relationship was provided.

51. On balance, having considered carefully all the evidence of the relationship cumulatively and collectively, the Tribunal finds that at the time of application and at the time of decision the parties were and remain in a committed long-term relationship. In making this determination the Tribunal has taken into account that the parties have been married for three years, that they are in frequent communication with each other and that they have future long-term plans together.

52. Having regard to all of the evidence, the Tribunal concludes as follows:

    • The parties are married to each other under a marriage that is valid for the purposes of the Act;
    • they are not living separately and apart on a permanent basis;
    • they have a mutual commitment to a shared life together to the exclusion of others; and
    •  that the relationship is genuine and continuing.

53. 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.

54. Therefore, the visa applicant meets cl.309.211(2) and cl.309.221.

55. 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.

56. As the visa applicant meets the criteria in cl.309.211 and cl. 309.221, the ability of the second and third named visa applicants to satisfy the secondary criteria in cl.309.3 should also be reconsidered.

    DECISION

57. 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(2) of Schedule 2 to the Regulations

    ·cl.309.221 of Schedule 2 to the Regulations

    Christine Kannis
    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).