Nguyen (Migration) - [2021] AATA 5493

Nguyen (Migration) [2021] AATA 5493 (21 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Thi Hoai Thu Nguyen
CASE NUMBER:  1835052
HOME AFFAIRS REFERENCE(S):          BCC2017/4613787
MEMBER:P. Maishman
DATE:21 September 2021
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 21 September 2021 at 1:01pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – relationship ceased – family violence exception – existence of genuine spousal relationship before the claimed family violence – false or misleading information – credibility concerns – financial aspects – nature of the household – social aspects – nature of the commitment – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), rr 1.15A, 2.03A; Schedule 2, cls 820.211, 820.221, 820.226; Schedule 4, PIC 4020
CASES
El Jejieh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1103
He v MIBP [2017] FCAFC 206
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 November 2018 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 5 December 2017 on the basis of her relationship with her sponsor, Kim Lee Ung. 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 (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.
Relevantly to this matter the primary criteria include cl 820.211 and cl 820.221 which require at the time of application and decision, the applicant is the spouse or de facto partner of the sponsor, unless the relationship has ceased and certain circumstances exist. These include that the applicant, or a member of the family unit, has suffered family violence committed by the sponsor: cl.820.221(3)(b)(i). The applicant claims her relationship with the sponsor ceased and she suffered family violence.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(a) because the delegate was not satisfied the applicant was the spouse or de facto partner of her sponsor at the time of application.
The applicant appeared before the Tribunal on 27 January 2021 and 27 July 2021 to give evidence and present arguments. The Tribunal also heard from Ms Thi Cuc Truong, the owner of premises at Jessel Court on 27 July 2021.
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 by her registered migration…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nguyen (Migration)

Details

AGLC: Nguyen (Migration) [2021] AATA 5493
Case: [2021] AATA 5493
Decision Date: 21 September 2021

CaseChat Overview and Summary

This matter concerned an application for review of a decision to refuse a Partner (Temporary) (Class UK) visa (Subclass 820). The applicant claimed to have met the sponsor in November 2013 and married on 28 November 2014. The applicant later sought to have her application considered under the family violence exception, alleging she had left the shared residence in December 2018 and had suffered family violence. The Tribunal was required to determine whether the applicant met the criteria for the visa, including the existence of a genuine spousal relationship and the applicability of the family violence exception.

The primary legal issues before the Tribunal were whether the applicant had established a genuine spousal relationship with the sponsor, and if not, whether the family violence exception could still be considered. The Tribunal also had to address conflicting Federal Court authorities regarding the availability of the family violence exception when the decision-maker is not satisfied of the existence of a genuine relationship prior to the claimed family violence. The Tribunal noted that some authorities suggest that if no genuine relationship existed, the family violence exception need not be considered, while a more recent judgment in *El Jejieh v MICMSMA* interpreted a similar provision as not requiring proof of a genuine relationship for the exception to apply.

In its reasoning, the Tribunal considered the evidence presented, including joint bank statements and statutory declarations. The Tribunal noted the conflicting authorities on the family violence exception. Ultimately, the Tribunal affirmed the decision not to grant the visa, finding that the applicant did not satisfy the criteria. The Tribunal's decision was based on its assessment of the evidence and the application of relevant migration regulations concerning the assessment of partner relationships, which include financial, household, social, and commitment aspects.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The Tribunal had before it a copy of the Department’s file containing the visa application, sponsorship form and documents the Department received. The applicant claims to have first met the sponsor in November 2013 and to have married on 28 November 2014. The applicant and the sponsor declared their residential address to be Jessel Court, Westminster and provided documents including a residential tenancy agreement, individual Department of Transport invoices issued on 28 November 2017, and a payslip issued 23 November 2017 showing the Jessel Court address. The applicant gave the Tribunal a copy of the delegate’s decision record with her application for review. The applicant applied for the Partner visa on 5 December 2017. The Department wrote to the applicant on 25 September 2018 inviting her to submit additional evidence of her and her sponsors relationship. The delegate determined it was not satisfied the evidence and information provided was sufficient to demonstrate the applicant was the spouse or de facto partner of the sponsor, as defined. The Tribunal wrote to the applicant on 14 May 2019 and invited her to provide evidence about her relationship to support her application. On 11 June 2019 the Tribunal received copies of transaction statements for the applicant and sponsors joint Westpac account *7314 period from 1 December 2016 to 31 January 2019 and a submission the applicant was now to be considered under the family violence provisions. The applicant submitted because of her circumstances they were unable to obtain any further supporting information about the applicant and sponsors relationship. The Tribunal received a report dated 2 August 2020 attached to a Form 1410 statutory declaration from Linda Kenmar, social worker, on 10 November 2020. On 20 January 2021 the Tribunal received the representatives submissions, a statutory declaration from the applicant signed 20 January 2021 claiming she left the house she shared with the sponsor in December 2018 and alleging she had suffered family violence; a statutory declaration with attached report dated 27 August 2019 from Sandra Nguyen, registered clinical psychologist; and a letter from Dr Niamh Meade dated 22 August 2019. The Tribunal notes that there are conflicting Federal Court authorities as to whether the family violence exception to the continuing relationship requirement is available in circumstances where the decision maker is not satisfied of the existence of the relationship before the claimed family violence. The Tribunal notes there are a number of authorities to the effect that a decision maker may consider whether there ever was a genuine relationship and if not, then it is not necessary to consider whether relevant family violence has occurred[1]. However, the most recent Federal Court judgment on this issue, El Jejieh v MICMSMA, which did not cite the previous authorities, interpreted the family violence exception of the offshore Subclass 100 Partner visa (at cl 100.221(4)) as containing no requirement that the relationship referred to at that clause be a genuine spouse or de facto relationship. Judge Wagner found that cl 100.221(4) requires the applicant to establish that he or she entered Australia as the holder of a Subclass 309 visa and continues to hold that visa, not that there was a relationship, and that if the applicant held and continues to hold a Subclass 309 visa, then the Tribunal is required to consider whether the applicant has suffered relevant family violence. [1] See MIAC v Zouk [2007] FCAFC 47 at [15]-[17], Manpreet Kaur v MIBP [2014] at [44], Hanna v MIBP [2016] FCA 282 at [23] and Liu v MHA [2019] FCA 1925 at [21]-[22].

Decision

Reasons for decision

For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.DECISION The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.P. MaishmanMemberATTACHMENT - Extract from Migration Regulations 19941.15A 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).

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.P. MaishmanMemberATTACHMENT - Extract from Migration Regulations 19941.15A 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).