Nguyen (Migration)

[2021] AATA 4321

Nguyen (Migration) [2021] AATA 4321 (30 August 2021)

Corrigendum

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Van Nghiem Nguyen

VISA APPLICANTS:  Mrs Thi Thu Nguyet Phan
Mr Thanh Vinh Nguyen
Mr Thanh Quang Nguyen

CASE NUMBER:  1811184

HOME AFFAIRS REFERENCE:               BCC2016/2282408

MEMBER:Michael Ison

DATE OF DECISION:  30 August 2021

DATE CORRIGENDUM

SIGNED:20 September 2021

PLACE OF DECISION:  Melbourne

AMENDMENT:  

The following corrections are made to the decision:

·In the cover of the Decision Record at page 1 and at paragraphs 99, 105 and 109, replace the words “cl.309.311 of Schedule 2 to the Regulations” with the words “cl.309.321 of Schedule 2 to the Regulations”.

·At paragraph 105, also replace the words “cl.309.211 of Schedule 2 to the Regulations” with the words “cl.309.211 and cl.309.221 of Schedule 2 to the Regulations”.

Michael Ison, Senior Member

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Van Nghiem Nguyen

VISA APPLICANTS:  Mrs Thi Thu Nguyet Phan
Mr Thanh Vinh Nguyen
Mr Thanh Quang Nguyen

CASE NUMBER:  1811184

DIBP REFERENCE(S):  BCC2016/2282408

MEMBER:Michael Ison

DATE:30 August 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application of the first named visa applicant for a Partner (Provisional) (Class UF) visas for reconsideration, with the direction she meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211 of Schedule 2 to the Regulations; and

·cl.309.221 of Schedule 2 to the Regulations.

The Tribunal affirms the decision under review in relation to the second named visa applicant.

The Tribunal remits the application of the third named visa applicant for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction he meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.311 of Schedule 2 to the Regulations.

Statement made on 30 August 2021 at 5:45pm

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 – married for 64 months – lived together for 23 months – kept apart due to circumstances outside their control – member of the family unit – dependent child – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A, 1.12, 1.15A; Schedule 2, cls 309.211, 309.221, 309.321

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 16 March 2018 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

   Background

2. The first named visa applicant is Mrs Thi Thu Nguyet Phan, aged 42, who is Vietnamese national. Mrs Phan is referred to as the visa applicant or first named visa applicant in these reasons for decision.

3. The visa applicant was married once previously and divorced her first husband in 2010.   The visa applicant has two children from her previous marriage.  Both of these children, Mr Thanh Vinh Nguyen, aged 21, and Mr Thanh Quang Nguyen, aged 19, are included in this review application. They are referred to as the secondary visa applicants or the second and third named visa applicants respectively in these reasons for decision. 

4. The review applicant is Mr Van Nghiem Nguyen, aged 50, who is an Australian citizen, having been granted citizenship on 4 November 1993. Mr Nguyen is referred to as the review applicant in these reasons for decision.

5. The review applicant was married once previously. He divorced his first wife Ms Huong in 2008 and has one daughter from that relationship. However, the review applicant submitted in a written statement that he found out that he is not the biological father of this child. The review applicant was next in a de facto relationship with another partner, Ms Do, from 2007 to 2009 and has one son, Martin Do Nguyen, from that relationship, who was born in 2008. The review applicant was next engaged to another partner, Ms Loan, in Vietnam in 2010 and that relationship ended in 2015 without children after the review applicant unsuccessfully tried to sponsor Ms Loan to come to Australia on a Partner visa.

6. At the time the visa applicant applied for the Partner visa, the applicants were married and applied on the basis of the visa applicant being the spouse of the review applicant.

7. The evidence before the Tribunal is that the review and visa applicants are not related by birth and prior to meeting in August 2015 were not known to each other.

   The primary decision of a delegate of the Minister

8. The review applicant provided the Tribunal with a copy of the primary decision.

9. The visa applicant applied for the Partner visa on 16 July 2016 on the basis of her relationship with her sponsor, the review applicant.

10. 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.

11. 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 on the written evidence before the delegate that the visa applicant and review applicant were in a genuine spouse relationship, as that term is defined in the Act and Regulations.

    The Tribunal hearing

12. On 5 May 2021 a hearing invitation was sent to the applicants’ representative inviting the review applicant and the visa applicant to appear in person and by telephone respectively before the Tribunal on 10 June 2021 to give evidence and present arguments.

13. However, on 2 June 2021 a Tribunal officer contacted the applicants’ representative and explained that the Presiding Member intended to re-schedule the in-person hearing for a hearing at the same time and day but by video due to the then recent imposition in Victoria of restrictions on the movement and gathering of people, known as a ‘lockdown’, as part of the State government’s response to the COVID-19 global pandemic. The applicants, through their representative, agreed to the hearing proceeding as a video hearing.

14. On 2 June 2021 a rescheduled video hearing invitation was sent to the applicants’ presentative to invite the applicants to appear by video before the Tribunal on 10 June 2021.  

15. The applicants appeared before the Tribunal on 10 June 2021 to give evidence and present arguments, by video.

16. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages who also participated in the hearing by video. 

17. The applicants were represented in relation to the review by their registered migration agent, Mr Van Ngan Nguyen of Top Reinz & Associates, who also participated in the hearing by video.  Mr Nguyen is referred to in theses reasons for decision as the applicants’ representative or the representative.

18. The hearing was held during the COVID-19 global pandemic when, as noted in paragraph 13 of these reasons, there were extensive restrictions on the movement and gathering of people in Victoria and also other States. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicants. 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 video. The Tribunal was satisfied the applicants, the applicants’ representative, the interpreter and the Tribunal could satisfactorily see, hear and understand each other during the hearing.

19. At the commencement of the Tribunal hearing the Tribunal explained the role of the interpreter as an aid to communication and asked the applicants if they had any objection to the use of the interpreter retained by the Tribunal. The applicants individually indicated they did not. The Tribunal explained to the applicants the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal also explained the role of the applicants’ representative during the hearing. The Tribunal informed the applicants that it would seek submissions from both of the applicants and their representative toward the end of the Tribunal hearing on any matter they considered relevant to the applicants’ review.

    Pre-hearing submissions

20. The Tribunal received the following submissions on behalf of the applicants prior to the Tribunal hearing, with the main, but not all, documents attached to each submission noted in brackets:

    ·1 May 2018 (representative’s email and visa applicant’s current passport);

    ·8 May 2018 (representative’s email, visa applicant’s citizen identification card, her        birth certificate and statement as to her date of birth);

    ·18 May 2020 (seven page submission from the review applicant, witness statements from Thi Thanh Bach Nguyen, Thuy Ngoc Nguyen, Nhan Chac Trinh and Thi Kim Trang Nguyen, joint bank statement of the applicants, Telstra bills, photos, applicants’ social media records including messages and call logs from August 2018 to May 2020, money transfer receipt);

    ·3 June 2021 (applicants’ social media records including messages and call logs from May 2020 to May 2021).

21. The Tribunal confirmed with the representative at the commencement of the Tribunal hearing that these were all of the submissions provided to the Tribunal.

22. The Tribunal also engaged in other correspondence with the applicants and their representative in relation to administrative matters associated with this review.

    Post-hearing submissions

23. The Tribunal received a submission on 25 August 2021 which was 17 pages of the applicants’ social media records including messages and call logs, written in Vietnamese and not translated for the Tribunal, from 2 May 2021 to 20 August 2021.

    Tribunal decision

24. The Tribunal has had regard to the applicants’ oral evidence, all of the information in the written and oral submissions provided to the Tribunal on the applicants’ behalf and to the information in the Tribunal’s file and the Tribunal’s copy of the Department’s file.

25. For the following reasons, the Tribunal has concluded that the visa applications of the first and third named visa applicants should be remitted for reconsideration and the decision of the delegate in relation to the second named visa applicant should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

26. The issue in the present case is whether the visa applicant and the review applicant are in a genuine spousal relationship as that is defined by the Act and Regulations.

    Whether the parties are in a spouse or de facto relationship

27. 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.

28. ‘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).

29. 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?

30. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.

31. The visa applicant and the review applicant claim to have met in a carpark of a shopping centre in a suburb of Perth, Western Australia in August 2015 and were married in a civil ceremony in Perth on 5 April 2016. The review applicant has provided a copy of a marriage certificate for the marriage and the Tribunal accepts the applicants are validly married.

32. 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).

    Background

33. The applicants first met in August 2015 when the visa applicant’s car broke down and the review applicant offered her help. They stayed in touch and soon began a courtship and then decided on Vietnamese Lunar New Year in February 2016 to get married. The review applicant immediately moved into a house rented by the visa applicant and her eldest son, the second named visa applicant. As noted in paragraph 31 of these reasons, the review and visa applicant then married in April 2016.

34. Both applicants have previously been married and both applicants have children from their previous relationships.

35. The visa applicant’s youngest son, the third named visa applicant, at the time the visa applicant commenced her relationship with the review applicant remained in Vietnam where he lived with the visa applicant’s parents, his grandparents, and attended secondary school.

36. The visa applicant’s eldest son came to Australia in August 2013 as the holder of a Student visa and the visa applicant accompanied him as his guardian. The second named visa applicant has remained in Australia since holding successive Student visas and presently a Subclass 485 visa.

37. The visa applicant applied for a Student visa for her youngest son in 2015 but this was refused because, according to the delegate who refused the present application for a Partner visa, the signed consent of the third named visa applicant’s father consenting to the application for the Student visa was found to be fraudulent.

38. The review applicant also sponsored his previous de facto partner, Ms Loan, for a Partner visa to come to Australia but that application was refused in 2015 when, according to the review applicant, Ms Loan “failed interview” for the visa and then told the review applicant she did not want to come to Australia or appeal the refusal.

39. In December 2017 the applicants returned to Vietnam with the visa applicant staying in Vietnam after her application for the Partner visa was refused (in March 2018) and the review applicant returning to Australia.

40. The review applicant returned to Vietnam in January 2018 to attend the Partner visa interview in Ho Chi Minh City, Vietnam.

41. The review applicant returned to Vietnam to visit the visa applicant in April 2018 for two weeks, January 2019 for one week and May 2019 for three weeks.

42. Both the review applicant and visa applicant gave evidence the review applicant had booked to travel to visit the visa applicant in 2020 but the emergence of the COVID-19 global pandemic resulted in the review applicant’s trip being cancelled.

43. The visa applicant moved to the United States of America in late 2019 with her youngest son, the third named visa applicant, in late 2019 and remains there at the time of this decision.

    Significant developments in the applicants’ relationship since the delegate’s decision

44. The delegate’s decision was made almost three and a half years ago at the time of this decision. In that intervening period the applicants have provided evidence that:

    ·The visa applicant’s eldest son has resided with the review applicant at the house in Western Australia first rented by the visa applicant and continues to live with the review applicant at the time of this decision;

    ·The review and visa applicant have maintained continuous and regular communications since the review applicant left Australia on 25 December 2017;

    ·That evidence demonstrates those communications have been continuing up until just before the time of this decision; and

    ·The review applicant visited the visa applicant in Vietnam in April 2018, January 2019 and May 2019 and intended to visit again in 2020 but the emergence of the COVID-19 global pandemic resulted in the review applicant’s trip being cancelled.

    Are the other requirements for a spouse relationship met?

45. To be satisfied that the applicants are in a genuine spouse relationship the Tribunal must be satisfied each of the criteria set out in r.1.15A(3)(a), (b), (c) and (d) are satisfied and the Tribunal must consider any other circumstances of the relationship under r.1.15A(2).

    Financial aspects of the relationship – including joint ownership of real estate and other major assets; any joint liabilities; the extent of any pooling of financial resources, especially in relation to major financial commitments; whether one person in the relationship owes any legal obligation in respect of the other; and the basis of any sharing of day-to-day household expenses.

46. The applicants gave evidence, which the Tribunal accepts, that they do not jointly own any real estate or major assets, they do not owe any legal obligations in respect of each other and as they live in different countries do no presently share household expenses.

47. The applicants separately gave evidence of opening a joint Westpac bank account when they were married which they used when they lived together between February 2016 and December 2017. The applicants also gave evidence of having their own separate bank accounts in Australia prior to being married and maintaining those accounts but rarely using them once they opened their joint account.

48. The review applicant provided the Tribunal with 57 pages of bank statements for that joint account from October 2017 to April 2020. Those statements were of limited assistance to the Tribunal because from 25 December 2017 the visa applicant had returned to Vietnam and there were no transactions on that account recorded in the statements from either Vietnam or the United States.

49. The review applicant told the Tribunal he sent the visa applicant money transfers so she could buy herself gifts from time to time. However, the Tribunal gave this evidence very limited weight as the review applicant provided only one receipt, dated 21 June 2018, for the transfer of AUD300.

50. The review applicant gave evidence that the visa applicant sold property in Vietnam before moving to the United States and that the visa applicant took a large amount of money to the United States which she and her son have lived off since with additional financial support from the visa applicants parents in Vietnam, such that the review applicant does not financially support his wife. The review applicant gave evidence of having sustained a back injury that has limited his work capacity.

51. The review applicant did provide evidence of utility bills in the form of 28 pages of Telstra accounts in the applicants joint names addressed to their common address where they lived between February 2016 and December 2017 and where the review applicant continues to live. Again, this evidence was of limited assistance to the Tribunal because the accounts were from December 2017 to May 2019 and apart from the month of December, covered a period when the applicants were not living together.

1. The visa applicant gave evidence that was consistent with that of the review applicant in relation to these considerations. The visa applicant told the Tribunal that her parents contribute financially to support her and her youngest son in the United States, supplementing the money the visa applicant took following the sale of real estate in Vietnam. The visa applicant obtaining financial support from her parents rather than her husband has less significance for the Tribunal in the applicants’ circumstances than it otherwise may have had. The Tribunal accepts the review applicant has reduced work capacity due to injury and what capacity he has may have been affected by the COVID-19 global pandemic. Similarly, the Tribunal accepts that the visa applicant intended to travel and stay in the United States only for “months” and due to the emergence of the COVID-19 global pandemic she and her youngest son have effectively been ‘stuck’ there since, something which the applicants’ could not have foreseen or planned for financially.

2. There is very limited evidence before the Tribunal of any genuine pooling of financial resources between the applicants as a married couple. However, as they have lived in different countries since December 2017 and their financial circumstances have been significantly affected by the emergence of the COVID-19 global pandemic, the Tribunal does not make any adverse findings against the visa applicant in this regard.

3. The Tribunal finds that the considerations relevant to assessing the financial aspects of the applicants’ relationship are neutral and neither support nor weigh against a finding that the applicants are in a genuine spouse relationship.

   Nature of the household – including any joint responsibility for the care and support of children; the living arrangements of the persons; and any sharing of the responsibility for housework.

4. The applicants gave very consistent but not obviously rehearsed evidence about their living arrangements, performance of household duties and chores, daily routines and weekend activities from the time they lived together between February 2016 and December 2017. The Tribunal finds that the evidence before it indicates that during that time the nature of the applicants household was consistent with them being in a genuine spouse relationship.

5. The review applicant was able to provide detailed evidence about his relationship with and ongoing sharing of the house with the visa applicant’s eldest son, including providing evidence about the second named visa applicant’s study, work, general living arrangements and social life, including with his girlfriend. This evidence was consistent with similarly detailed evidence about her eldest son given by the visa applicant. In taking this evidence from the parties, the Tribunal focussed on what it considered significant evidence of the recent nature of the household in a manner that required spontaneous recall by the parties and would have been very difficult to rehearse.

6. Apart from three trips back to Vietnam in 2018 and 2019 for a total of six weeks stay in Vietnam, the applicants have not lived together since December 2017 and have not been able to visit each other since March 2020 due to the travel restrictions imposed as a response to the emergence of the COVID-19 global pandemic. They last spent time together in May 2019.

7. The Tribunal finds that the considerations relevant to assessing the nature of the applicants household support a finding that they are in a genuine spouse relationship. The Tribunal has had to reduce the weight it may otherwise have given this evidence because the applicants have not lived in a shared household since December 2017.

   Social aspects of the relationship – including whether parties represent themselves to other people as being married to each other; the opinion of the parties friends and acquaintances about the nature of the relationship; and any basis on which the parties plan and undertake joint social activities.

8. The applicants were able to recall consistent details about each other’s families, including each other’s and their own closeness or otherwise of their relationships with members of their own and each other’s families and the current location by country of each sibling. The review applicant is one of 12 children and the visa applicant the only girl of six children.

9. The applicants also had a consistent recollection of their social activities, mainly on weekends, during the time they lived together between February 2016 and December 2017.

10. The applicants provided statements in support of the genuineness of their spousal relationship from an older sister of the review applicant and three friends, including one who attended their wedding and another who is the son of the owner of the house the visa applicant initially rented and the review applicant now lives in. Each statement provides details that supports the oral evidence of the applicants about the social acceptance of their marriage.

11. The statement of the review applicant’s sister is significant. It addresses why the review applicant did not initially tell his family about his marriage to the visa applicant but confirms their oral evidence that they have both since met and have the approval of most of each other’s families, including their respective parents, who support their marriage.

12. The evidence of the social aspects of the applicants relationship is less since they have lived apart from December 2017 but the applicants separate oral evidence and each statement provided to the Tribunal attested to the ongoing nature of their relationship and the pain the applicants have expressed they feel since being separated.

13. The Tribunal finds that the considerations relevant to assessing the social aspects of the applicants relationship support a finding that they are in a genuine spouse relationship. Again, the Tribunal has given these considerations less weight than it otherwise may have only because the parties have lived in different countries since December 2017 and have not readily been able to present themselves as a couple socially.

    Nature of persons' commitment to each other – including the duration of the relationship; the length of time during which the parties have lived together; the degree of companionship and emotional support that the parties draw from each other; and whether the parties see the relationship as a long-term one.

14. The applicants have known each other for 72 months and have been married now for 64 months. In that time, they have lived together for 23 months. They have recently been kept apart due to circumstances outside their reasonable control.

15. The parties separately gave oral evidence of their love for and commitment to each other and both confirmed they see their relationship as a long-term one.

16. The review applicant provided three documents that contained 180 pages of social media records showing communications between the applicants from August 2018 to May 2020, May 2020 to May 2021 and from May 2021 to August 2021. The messages were not in English and the Tribunal was not given a translation of the messages. The Tribunal finds the number of messages and the call durations shown on the call logs establish that the applicants maintain regular and detailed contact, usually daily or at the least every few days. The Tribunal could not assess, given the messages were not in English, what degree of companionship or emotional support the messages shown in the records may have revealed the applicants draw from each other.

17. The applicants’ oral evidence of the companionship or emotional support they draw from each other was limited. The Tribunal considers it important when assessing this aspect of the genuineness of a spousal relationship to try and make that assessment, as best as the Tribunal can, with an understanding of the cultural context of that marriage and within that context what the parties may reasonably consider to be important and also what they may consider to be an appropriate way to express such feelings about each other.

18. In this case both applicants were able to articulate character traits about each other that they valued that were appropriate in their cultural context and consistent with their respective life experiences and situations. The applicants also gave consistent evidence of recent communications during personally or culturally significant events.

19. In addition, they provided detailed but consistent evidence about a specific life experience where they had drawn on each other for emotional support. They were also able to spontaneously talk about their future hopes and plans as a couple in a manner that gave the Tribunal the strong impression such plans were authentic and not rehearsed and were genuinely shared. There is no evidence before the Tribunal that indicates either of the applicants has been in a relationship with anyone else since they were married in April 2016.

20. The Tribunal finds that the considerations relevant to assessing the nature of the applicants’ commitment to each other support a finding that they are in a genuine spouse relationship. In the Tribunal’s view this was the most impressive aspect of the applicants’ evidence and the Tribunal gave the considerations relevant to this assessment great weight.

    Conclusion – first named visa applicant

21. The Tribunal is satisfied that the visa and review applicants are married to each other under a marriage that is valid for the purposes of the Act, as required by s.5F(2)(a) of the Act.

22. After considering all the evidence before it and each of the matters set out in r.1.15A(3) above, the Tribunal is satisfied that, at the time of the application for the visa and at the time of this decision, the visa applicant and the review applicant:

    ·have a mutual commitment to a shared life as a married couple to the exclusion of all others, as required by s.5F(2)(b) of the Act;

    ·the relationship between them is genuine and continuing, as required by s.5F(2)(c) of the Act; and

    ·live together or at least and do not live separately and apart on a permanent basis, as required by s.5F(2)(d) of the Act.

23. The Tribunal therefore finds that the visa and review applicants met the requirements of s.5F(2) of the Act at the time of the application and at the time of this decision.

24. Therefore, the visa applicant meets the requirements of cl.309.211 and cl.309.221 of Schedule 2 to the Regulations.

25. Given the findings above, the appropriate course is to remit the application of the visa applicant for the visa to the Minister to consider the remaining primary criteria for the grant of a Subclass 309 visa.

    Secondary applicants — Mr Thanh Vinh Nguyen and Mr Thanh Quang Nguyen

26. Secondary visa applicants are eligible for the grant of the visa if they satisfy the secondary criterion in cl.309.311 at the time of application criteria and cl.309.321 at the time of the Tribunal’s decision.

27. Clause 309.311 of Schedule 2 to the Regulations provides:

    The applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 309.21

28. Clause 309.321 of Schedule 2 to the Regulations provides:

    The applicant:

    (a)  continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 309 (Partner (Provisional)) visa (the person who satisfies the primary criteria); or

    (b)       is a person to whom each of the following applies:

    (i)      the person made a combined application with the person who satisfies the primary criteria;

    (ii)  subsequent to the combined application being made, the person was found by the Minister not to be a member of the family unit of the person who satisfies the primary criteria;

    (iii)  subsequent to the person who satisfies the primary criteria being granted a Subclass 309 (Partner (Provisional)) visa and Subclass 100 (Partner) visa — the Tribunal found the person to be a member of the family unit of the person who satisfies the primary criteria.

29. Section 5(1) of the Act provides that the term ‘member of the family unit of a person’ has the meaning given by the Regulation made for the purpose of this definition. Regulation 1.03 provides that ‘member of the family unit’ has the meaning set out in r.1.12.

30. Regulation 1.12 defines ‘member of the family unit’ as follows:

    (1)For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:

    (a)       a spouse or de facto partner of the family head; or

    (b)  a dependent child of the family head or of a spouse or de facto partner of the family head; or

    (c)  a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or 

    (e)       a relative of the family head or of a spouse or de facto partner of the family head who:

    (i)      does not have a spouse or de facto partner; and

    (ii)       is usually resident in the family head's household; and

    (iii)      is dependent on the family head.

31. Sub-regulations 2, 2A, 6 and 7 of r.1.12 are not relevant for present purposes.

32. The second and third named visa applicants claim to be the dependent child of the first named visa applicant, their mother, in accordance with the requirements of r.1.12(1)(b).

33. ‘Dependent child’ is defined in r.1.03 as follows:

    dependent child, of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:

    (a)       has not turned 18; or

    (b)       has turned 18 and:

    (i)      is dependent on that person; or

    (ii)  is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

34. For the purposes of the above definition, ‘dependent’ is defined in r.1.03 as having the meaning given to it in r.1.05A.

35. Regulation 1.05A defines ‘dependent’ for this purpose as:

    (1)       Subject to subregulation (2), a person (the first person) is dependent on another person if:

    (a)at the time when it is necessary to establish whether the first person is dependent on the other person:

    (i)the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

    (ii)  the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

    (b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions

36. Sub-regulation 2 of r.1.05 is not relevant for present purposes.

37. The Tribunal did not have the benefit of taking oral evidence from the second or third named visa applicants.

    Second named visa applicant - Mr Thanh Vinh Nguyen

38. The information before the Tribunal is that the second named visa applicant, Mr Thanh Vinh Nguyen is 21 years of age at the time of this decision and lives in Australia in Western Australia with the review applicant. The review applicant told the Tribunal that the second named visa applicant finished his secondary schooling in 2017 and then undertook cooking studies at the Vocational Education and Training (VET) Sector level for two years. Since then the review applicant’s evidence is that the second named visa applicant has worked as a delivery driver for Australia Post but has not found an “official job” and has a two-year visa that enables him to undertake further study in Australia which is what he plans to do, at the tertiary rather than VET Sector level. There is no evidence before the Tribunal of the second named visa applicant being incapacitated for work due to the total or partial loss of a bodily or mental function under the definition in r.1.03 of dependent child. The review applicant also told the Tribunal that the second named visa applicant is “financially independent” and does not rely on the review applicant for any financial support, which the Tribunal accepts.

39. The first named visa applicant, being the second named visa applicant’s mother, gave similar evidence to the review applicant in relation to the second named visa applicant. The Tribunal asked the first named visa applicant who financially supports the second named visa applicant and she responded that he is independent.

40. A check of Departmental records confirmed that the second named visa applicant was granted a Subclass 571 School Sector Student visa on 13 August 2013 that was valid to 15 March 2018. The second named visa applicant arrived in Australia on 18 August 2013 and completed his secondary schooling in Australia. The second named visa applicant was then granted a Subclass 500 Student visa on 16 March 2018 that was valid to 15 March 2020. On 4 May 2020 the second named visa applicant was granted a Subclass 485 visa that is valid for two years and which he continues to hold at the time of this decision.

41. The second named visa applicant has turned 18 and according to the evidence of both the review applicant and the first named visa applicant, which the Tribunal accepts, is financially independent and is not wholly or substantially reliant on his mother, the first named visa applicant for financial support to meet his basic needs for food, clothing and shelter.

42. The Tribunal notes that the review applicant and first named visa applicant both gave consistent evidence, which the Tribunal accepts, that the rent of the house in Western Australia is paid for by the first named visa applicant’s parents and not by the review applicant or the first named visa applicant.

43. The Tribunal is not bound by Departmental policy, but it is appropriate for the Tribunal to ordinarily apply lawful government policy unless there are cogent reasons not to do so. In the present circumstances, Departmental policy articulated at the time provided in the Department’s Procedures Advice Manual (known as PAM3) provides that the family head will be the main visa applicant, that is, the person who needs to satisfy the Schedule 2 primary criteria. In this case that is the first named visa applicant.

44. Department policy further provides that when assessing students as dependents:

    It is generally accepted in Australian society that it is reasonable for young tertiary students to maintain dependence on their parents for a time.

    For this reason, it is policy that an adult child who is a full-time student completing their first major undergraduate qualification may be considered 'wholly or substantially reliant', even though they may be working part time or receiving a scholarship.

    It can be accepted that they meet regulation 1.05A provided the student:

    ·is otherwise financially reliant on their parent/s (that is, they do not have another substantial income source) and

    ·has been in continuous full-time study since completing high school.

    Students in other circumstances, for example postgraduate students, or students who have resumed study after a period of independence should be carefully assessed against the regulatory provision, as outlined above.

    Officers should also note that some additional factors may need to come into consideration for students. For example, while a parent may not directly provide their student child with money, parents sometimes provide financial support through covering the costs of university accommodation (which can include the cost of certain meals). This financial support can be considered for the purposes of regulation 1.05A(1), provided it is attributed to basic needs such as food and shelter.

1. The evidence before the Tribunal, which the Tribunal accepts, is that the second named visa applicant has undertaken further study after completing secondary school, but at the time of this decision is not studying and has not done so continuously full-time since completing secondary school, although he intends to resume his study in the near future.

2. The evidence before the Tribunal, which the Tribunal accepts, is that the first named visa applicant does not pay for the second named visa applicant’s shelter (rent) and there is no evidence that the first named visa applicant financially supports the second named visa applicant’s purchase of food or clothing. The Tribunal finds that the second named visa applicant is not a ‘dependent child’, as that term is defined in r.1.03, of the first named visa applicant and therefore is not a member of the family unit of the first named visa applicant for the purposes of r.1.12(1)(b)

3. The Tribunal accepts the evidence of the first named visa applicant that she and the second named visa applicant have not lived in the same household since the first named visa applicant left Australia on 25 December 2017. The Tribunal finds the second named visa applicant is not a member of the family unit of the first named visa applicant under r.1.12(1)(e) as a relative of the first named visa applicant.

4. As the second named visa applicant is not a member of the family unit of the first named visa applicant for the purposes of r.1.12 he does not meet the requirements of cl.309.311 of Schedule 2 to the Regulations.

   Conclusion – second named visa applicant

100.   Given the findings above, the Tribunal must affirm the decision under review in relation to the second named visa applicant.

Third named visa applicant - Mr Thanh Quang Nguyen

101.   The information before the Tribunal is that the third named visa applicant, Mr Thanh Quang Nguyen is 19 years of age at the time of this decision and lives in Atlanta, Georgia in the United States of America with his mother, the first named visa applicant. The review applicant gave evidence that the third named visa applicant is studying English as a second language in the United States with a view to enrolling in college there.

102.   The first named visa applicant gave evidence that the third named visa applicant and she went to the United States “for a few months” in late 2019 but were then unable to return to Vietnam due to the international travel restrictions put in place as countries responded to the emergence of the COVID-19 global pandemic. The first named visa applicant gave evidence that she and her son, the third named visa applicant, both enrolled in English as a Second Language course, which is of two years duration, and they are both still studying that course and have no work rights in the United States. The first named visa applicant told the Tribunal her son hopes to study hospitality and business management at college.

103.   The first named visa applicant told the Tribunal that she and the third named visa applicant will return to Australia to be reunited with the review applicant and the second named visa applicant as soon as they can if they are granted Partner visas.

104. There is little evidence before the Tribunal of what specific financial support the first named visa applicant provides to the third named visa applicant during their ongoing stay and study in the United States or whether those funds come from her own resources or from her parents. The Tribunal affords the first named visa applicant considerable leeway in this regard. The Tribunal accepts that the emergence of the COVID-19 global pandemic has caused significant and ongoing disruptions to many people’s travel, work and education plans. The Tribunal finds that the third named applicant is living with the first named visa applicant at the time of this decision and is reliant upon her for his basic needs in relation to the provision of food, clothing and shelter and has been so reliant for over 12 months, which meets the requirement in the definition of ‘dependent’ in r.1.05A that the dependency be for a substantial period of time.

105. The Tribunal finds that the third named visa applicant is a member of the family unit of the first named visa applicant under r.1.12(1)(b) and made a combined visa application with the first named visa applicant who is a person the Tribunal has found satisfies the primary criteria for the grant of a Partner visa in cl.309.211 of Schedule 2 to the Regulations. This means the third named visa applicant satisfies the secondary criteria in cl.309.311 of Schedule 2 to the Regulations for the grant of a Partner visa.

Conclusion – third named visa applicant

106.   Given the findings above, the appropriate course is to remit the visa application of the third named visa applicant to the Minister to consider the remaining secondary criteria for the grant of a Subclass 309 visa.

decision

107.   The Tribunal remits the application of the first named visa applicant for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that she meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211 of Schedule 2 to the Regulations; and

·cl.309.221 of Schedule 2 to the Regulations.

108.   The Tribunal affirms the decision under review in relation to the second named visa applicant.

109.   The Tribunal remits the application of the third named visa applicant for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that he meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.311 of Schedule 2 to the Regulations.

Michael Ison
Senior 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).