NGUYEN (Migration)

Case [2021] AATA 2541

NGUYEN (Migration) [2021] AATA 2541 (15 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr VAN CAP NGUYEN
Miss THI PHUONG ANH NGUYEN

CASE NUMBER:  1804510

HOME AFFAIRS REFERENCE(S):          BCC2014/3565182

MEMBER:Meena Sripathy

DATE:15 July 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl 820.211(2) of Schedule 2 to the Regulations

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

and the second named applicant meets:

·cl 820.311 of Schedule 2 to the Regulations.

Statement made on 15 July 2021 at 2:18pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – validly married – financial aspects of relationship – extent of applicant’s knowledge of sponsor’s history of gambling – household and social aspects of relationship – nature of commitment – married soon after meeting, but marriage now 6 years’ duration – joint travel and family activities – some inconsistent evidence because of passage of time and stress of proceedings – member of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 820.211(2)(a), 820.221(1)(a), 820.311

CASES
He v MIBP [2017] FCAFC 206
Re MILGEA and Dhillon [1990] FCA 144

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 on 2 February 2018 to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

  2. The first named applicant (the applicant) applied for the visa on 28 December 2014 on the basis of his relationship with his sponsor, Ms This Thu Nguyen. The second named applicant (secondary visa applicant) applied for the visa on the basis of being a member of his family unit. 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 (Cth) (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 applicant did not satisfy cl 820.211 because the delegate was not satisfied on the evidence provided that he and  and the sponsor were in a genuine spouse relationship as that term is defined in s5F of the Act, and therefore she did not meet cl.820.211 and, accordingly, was not satisfied that the second named visa applicant satisfied cl.820.321.

  4. The applicants appeared before the Tribunal on 25 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Ms Thi Thu Nguyen.…

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NGUYEN (Migration) [2021] AATA 2541
Case
[2021] AATA 2541
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by an applicant for a Partner (Temporary) (Class UK) visa, Subclass 820, against a delegate's refusal of his application. The applicant, a Vietnamese national, sought to establish a genuine and continuing spouse relationship with his sponsor, an Australian citizen. The core of the dispute revolved around whether the parties had met the criteria for a genuine and continuing spouse relationship as required by the Migration Act 1958 (Cth) and associated regulations.

The Tribunal was required to determine whether the applicant and his sponsor were in a valid marriage, whether they demonstrated a mutual commitment to a shared life as a married couple to the exclusion of all others, whether their relationship was genuine and continuing, and whether they lived together or not separately and apart on a permanent basis. In making this determination, the Tribunal had to consider all circumstances of the relationship, including its financial and social aspects, the nature of their household, and their commitment to each other, as outlined in regulation 1.15A(3) of the Migration Regulations 1994.

The Tribunal's reasoning acknowledged initial concerns regarding the rapid progression of the relationship from meeting to marriage and the sponsor's history of gambling and associated debts. However, after considering extensive documentary evidence, including joint bank statements, travel documents, and statutory declarations, as well as oral evidence from the parties, the Tribunal concluded that the relationship was genuine and continuing. The Tribunal found that the passage of time, over six years since the marriage, and the parties' continuous cohabitation strongly supported the genuineness of their relationship. Furthermore, the Tribunal accepted the applicant's explanations regarding the sponsor's gambling winnings and the continued receipt of Centrelink payments, deeming them plausible and not adversely impacting the overall assessment of the relationship's financial aspects. The Tribunal was satisfied that the parties met the criteria for a genuine and continuing spouse relationship.

Consequently, the Tribunal remitted the applications for Partner (Temporary) (Class UK) visas. The direction was that the first applicant met the criteria for a Subclass 820 (Partner) visa concerning the spouse relationship and the second applicant met the criteria relating to being a child of the applicant. The matter was remitted to the Minister for consideration of the remaining visa criteria.

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 matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The applicant is a 51 year old Vietnamese national. He has parents, 6 siblings and two sons in Vietnam and a daughter (the secondary visa applicant) in Australia. The sponsor is a 50 year old, Vietnamese born, Australian citizen. Her parents are deceased, and she was 5 siblings and 2 step siblings n Australia as well as two daughters. The parties claim they met on 1 July 2014 at a coffee shop in Canley Heights, and started going out around a week later. They claim they ‘fell in love’ on 1 August 2014 and he then departed Australia at the end of that month. The applicant returned to Australia on 13 October 2014 and proposed marriage to the sponsor on 11 November 2014 and they married on 20 December 2014. The present application was lodged on 28 December 2014. The parties claim to be living together at an address in Canley Vale. The applicant declared a previous marriage to Thi Dua from October 1995 which ended in divorce on 25 February 2014 because of disagreements and differences in lifestyle. They had two children of this relationship. The applicant does not declare any previous relationships of the sponsor. Among the supporting documents provided with the application are the following: marriage certificate; Form 888 Statutory Declarations from various people, including long term friends and the sponsor’s daughter; relationship statements from the applicant and sponsor; birth certificates of sponsor’s children indicating no father named; payslips and course fee receipts relating to the secondary visa applicant; correspondence addressed to applicant and sponsor showing common address, including drivers licences, superannuation letter, rates notice, water and phone bills; joint bank account statement; sponsor’s Westpac account; various receipts in joint names . The delegate, on consideration of the evidence before it, was not satisfied the applicant and sponsor were in a genuine spouse relationship and refused the application on that basis on 2 February 2018. Evidence before the Tribunal In May 2019 and January 2020 the applicant submitted further evidence in support of the continuing relationship including CBA Joint bank account statements for July -December 2018; St George Joint account statement June 2017-July 2018 (nil balance), photos of the couple’s visits to Cambodia and Vietnam and in Australia, receipts and other evidence of joint travel overseas in 2019, evidence of applicant’s tax assessment for 2019. Following a request for updated evidence issued by the Tribunal in March 2021 the applicant provided the following further evidence: secondary visa applicant’s bank statements; applicant’s car registration and licence showing address; 8 Form 888s from friends, sponsor’s cousins and an uncle attesting to the relationship; joint CBA bank statements 2020-2021; photos; secondary visa applicant’s course fee receipts.

Decision

Reasons for decision

The Tribunal also noted and sought explanation from the applicant about another source of regular income revealed in the sponsor’s personal account that was not mentioned by the parties at hearing. In his response to the Tribunal dated 5 July 2021 the applicant indicated that he asked his wife about these transactions and she informed him that they relate to her gambling winnings which were paid to her by cheque which she deposited and then withdrew to continue gambling. He explained that this was occurring during the period she was still having problems with her gambling issues. While on the one hand, the applicant’s apparent lack of knowledge of this until the Tribunal queried it casts some doubts about his knowledge of the sponsor’s gambling issue and consequently potentially their relationship, on the other hand it is also not inconsistent with the behaviour of individuals who have gambling problems. The Tribunal acknowledges that secrecy and denial is not an uncommon response from a partner in a relationship who has a gambling problem.[1] Ultimately, the Tribunal accepts the applicant has provided a reasonable and credible explanation about this and it does not adversely impact the Tribunal’s conclusion above relating to the financial aspects of the relationship. Nature of the household[1] >The applicant and sponsor reside together at a property owned by the sponsor for many years. They have lived together at this address since 2014, when the applicant returned to Australia. They gave evidence of each other’s daily routines, and the applicant’s workplace and hours of attendance. Their evidence of the housework routine was also generally consistent. Both said the sponsor does most of the cooking and the sponsor helps with laundry and chores on weekends. They live together with an adult daughter of each of them and both were reasonably familiar with the work and circumstances of these children. The applicant continues to financially support his younger son overseas and has plans to bring him to Australia in future. The sponsor was familiar with, and supported, the applicant’s support for his son and the Tribunal accepts they have discussed, and are in agreement, of the plan to bring him here in future. Having considered the evidence of the nature of the household, the Tribunal is satisfied the applicant and sponsor are residing together as a couple, and there is sufficient evidence of the nature of the household that is consistent with a genuine partner relationship of this duration. Social aspects of the relationshipThe evidence supports that the applicant and sponsor are familiar with and have met significant members of each other’s extended family. The applicant knows and regularly sees the sponsor’s elder daughter in Sydney and has travelled to Melbourne with the sponsor and met her siblings there. They attended the wedding of her brother in Melbourne as a couple. The sponsor travelled with the applicant to Vietnam and met his parents, siblings and son, and he met her extended family members. A significant number of statutory declarations and photos were provided to the Department and Tribunal attesting to the couple representing as a married couple and socialising together. Evidence of joint travel is before the Tribunal. The sponsor told the Tribunal she previously received Centrelink payments which ceased after she advised them of the relationship indicating that she has declared the relationship to official bodies. Information contained in the sponsor’s personal CBA statements indicates she continued to receive Newstart payments during 2015 and 2016 after they married. The Tribunal sought further clarification about this from the applicant in its letter of 22 June 2021. In response the applicant reiterated their evidence that the sponsor advised Centrelink of the marriage and were unable to obtain confirmation from Centrelink of the date when she made this declaration. He offered as a possible explanation that initially he was not working and this may explain why her Centrelink payments continued for a period. The Tribunal has considered the applicant’s response to this matter, and accepts it as a plausible and reasonable explanation. It accepts that from 2016 the sponsor’s Centrelink payments ceased and she is not at this time working or receiving Centrelink payments, which is consistent with their evidence. The applicant also indicated that he declared the sponsor as his spouse to the ATO, and a copy of his most recent tax summary provided supports this. The Tribunal is satisfied on the evidence that the social aspects of the relationship is consistent with a genuine partner relationship. Nature of persons' commitment to each other The applicant and sponsor met in 2014 and married that same year. The applicant had not long before divorced his previous wife in Vietnam and told the Tribunal he came to Australia to explore business opportunities. Both parties insisted that their meeting was a coincidence and not by introduction. While the Tribunal had some concerns about the coincidental nature of their meeting and rapid progression of the relationship to marriage, it observes that since then a period of over 6 years has passed and they have remained living together continuously. It finds the duration of the relationship for this period is strongly supportive of a genuine and ongoing relationship. The only visits back to Vietnam for the applicant since then has been with the sponsor, and they have provided evidence to support that they travelled together on that visit. Another issue which arose at the hearing that caused some concern for the Tribunal was the revelation of the sponsor’s substantial debts from gambling, and this raised concerns about whether this factor may have motivated the sponsor to enter into the relationship. However the Tribunal is mindful of judicial authority that states people enter into marriages for all kinds of motives and reasons including material benefit or advancement, or the hope of becoming eligible to reside in a particular country and this of itself is not inconsistent with a genuine marriage relationship.[2] While not without some doubts and concerns, on the weight of evidence before it, the Tribunal is satisfied that while each party may have had particular motivations (the sponsor, financial security and the applicant, a migration outcome) they have, over the prolonged period of processing of the application demonstrated a mutual commitment to a shared life as a couple and a genuine and continuing relationship, in the sense of one that is enduring for a period into the reasonably foreseeable future. [2] Re MILGEA and Dhillon [1990] FCA 144, citing with approval Street CJ in R v Cahill (1978) 2 NSWLR 453 at 458, also referred to as still relevant in Garcevic v MIAC [2012] FMCA 931 at [34]. Therefore, despite the above concerns, the Tribunal is satisfied on balance, having considered all of the evidence before it, including oral evidence from the applicant and sponsor obtained over several hours at hearing and the supporting documentary material, that the relationship is genuine and ongoing. On the basis of the findings and conclusions above, the Tribunal is satisfied the applicant and sponsor have a mutual commitment to shared life to the exclusion of others; the relationship is genuine and continuing ; and they live together and therefore the applicant meets the requirements of s5F(b)-(d) of the Act at the time the visa application was made and the time of this decision.Therefore the applicant meets cl 820.211(2)(a) and.820.221(1)(a).The Tribunal accepts the applicant is sponsored by the sponsoring partner and therefore meets cl 820.211(2)(c). As he held a substantive visa at time of application, cl 820.211(2)(d) does not apply. Therefore the applicant satisfies the requirements of cl.820.211(2) and accordingly cl. 820. 221(1).The Tribunal accepts, on the available evidence, that the second named visa applicant is the daughter of the applicant and that she was residing with, and dependent on, the applicant at time of application and therefore meets cl.820.311. 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.DECISIONThe Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:·cl 820.211(2) of Schedule 2 to the Regulations·cl 820.221(1) of Schedule 2 to the Regulations; and the second named applicant meets: ·cl 820.311 of Schedule 2 to the Regulations. Meena SripathyMemberATTACHMENT - 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

On 22 June 2021 the Tribunal invited the applicant’s response to information contained in the post hearing evidence submitted relating to regular transactions (deposits and withdrawals) attributed to Agency AUST POST LANSVALE appearing in the sponsor’s account which had not been mentioned in either of their evidence at hearing, and also requesting clarification of when the sponsor declared her marriage to Centrelink given that she appeared to be receiving Newstart payments in 2015-2016. The Tribunal received a response from the applicant on 5 July 2021, which is discussed below.FINDINGS AND CONSIDERATION For the following reasons, having carefully considered all of the evidence before the Department and Tribunal, including the additional documentary evidence provided to the Tribunal since lodgement of the review in 2018, the passage of time since then and the oral evidence of the applicant and sponsor at the hearing, the Tribunal is satisfied the applicant and sponsor are in a genuine spouse relationship as at the time of its decision. Although as discussed further below, it had some concerns about the inception and rapid progression of the relationship and the evidence revealed at the hearing about the sponsor’s level of indebtedness and gambling issue and applicant’s initial omission in referring to this matter, the Tribunal has determined, on balance, taking into consideration the passage of time and a holistic view of the evidence before it, that it is satisfied they are in a genuine spouse relationship. The Tribunal’s assessment of evidence and reasons for these conclusions follow. Whether the parties are in a spouse or de facto relationship 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. ‘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), which is extracted in the attachment to this decision. 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?