Nguyen (Migration)

[2021] AATA 1609

Nguyen (Migration) [2021] AATA 1609 (31 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manh Tung Nguyen

CASE NUMBER:  1801997

HOME AFFAIRS REFERENCE(S):          BCC2016/1235206

MEMBER:Hugh Sanderson

DATE:31 March 2021

PLACE OF DECISION:  Sydney

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

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

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

Statement made on 31 March 2021 at 2:48pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and ongoing relationship – financial arrangements of the sponsor’s business – both parties as shareholders – rental properties and joint home purchase – child of the relationship – joint holidays and social activities – home and work routines – decision under review remitted        

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.15

CASES

He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 17 March 2016 on the basis of his relationship with his sponsor. 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).

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211 because the delegate was not satisfied the applicant was the spouse, as defined in s.5F of the Act, of the sponsoring partner.

   Background

4. The applicant is a citizen of Vietnam and is currently 30 years old. His parents and a sister remain living in Vietnam. He first entered Australia in November 2013 holding a Student visa which was valid at the time of the application.

5. The sponsor of the applicant is Khanh Linh Nguyen who is currently 25 years old. She was born in Vietnam and is a Vietnamese citizen. She was granted a Contributory Parent visa in 2015 as the dependent child of her parents. Her parents and the sister reside in Australia. She first arrived in Australia in March 2015. She now has the right to reside permanently in Australia.

6. The parties claimed they first met each other on 13 June 2015 at a party. They claim a relationship developed after that time and on 1 January 2016 the applicant proposed marriage to the sponsor and, with the approval of her parents, she accepted. They were married on 12 March 2016 in Sydney.

7. The parties provided various documents in support of the application including the following:

   ·Statements by the parties;

   ·Statements by two friends of the parties attesting to the genuineness of the relationship;

   ·Photos of the parties wedding and while attending various social events and on holidays together;

   ·Cards another correspondence addressed to the parties;

   ·Evidence of the parties travel to Melbourne; and

   ·Evidence of the purchase by the sponsor of real estate.

8. The delegate who considered the application noted the following issues:

   ·There was evidence of the parties opening a joint bank account, however, there was nothing to show that this account was used for the pooling of financial resources or meeting of shared household expenses;

   ·A joint residential tenancy agreement was not signed or had any legitimate status;

   ·There was limited information indicating the parties were living together in a shared household;

   ·The photos and statutory declarations by friends provided limited information of any social activities of the parties;

   ·There was limited information of any mutual commitment to the relationship or long-term planning typical of a married couple; and

   ·There was, overall, limited information as to the genuineness of the relationship.

9. Taking these matters into account, the delegate was not satisfied the parties were in a genuine and continuing relationship. The delegate found the applicant was not the spouse, as defined in s.5F of the Act, of the sponsoring partner. The delegate found the applicant did not meet the criteria in cl.820.211(2)(a) and refused the application.

   Information to the Tribunal

10. The applicant provided further information to the Tribunal including the following:

    ·Statements by the parties;

    ·Statements by friends and relatives of the parties attesting to the genuineness of the relationship;

    ·Birth certificate of the parties’ child, Charlie, born in February 2020;

    ·Correspondence and other documents addressed to the parties shared home;

    ·Utilities accounts in the joint names of the parties;

    ·Bank account details;

    ·Residential tenancy agreements in the joint names of the parties; and

    ·Photos of the parties together at various social events and on holidays and with their child.

11. The applicant appeared before the Tribunal by MS Teams video on 31 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. 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 his registered migration agent who attended the hearing.

12. The parties provided consistent information as to various aspects of their relationship. This included their financial arrangements, where they had been living, the details of the purchase of the sponsor’s unit and their plans for their future together.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the applicant is the spouse, as defined in s.5F of the Act, of the sponsoring partner.

    Whether the parties are in a spouse or de facto relationship

15. 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 has the right to reside permanently in Australia.

16. ‘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?

17. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties were married on 12 March 2016. There is nothing to indicate marriage between the parties is not valid. 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).

    Are the other requirements for a spouse relationship met?

    Financial aspects

18. The parties provided details of their financial arrangements. The applicant operates his own trucking business with the applicant and the sponsor being the shareholders of the company he operates. The parties provided consistent information as to the financial arrangements of that business, including how the business was financed. The parties have their own bank accounts, however, both parties are aware of the details of each other’s savings. The parties have arranged their finances so that the necessary expense of the parties can be shared. The utilities for the various homes in which they have lived together are in their joint names.

19. The sponsor purchased the unit in which they are currently living in 2017. The unit was purchased in the sole name of the sponsor as they were advised that as the applicant did not have a permanent visa he was not able to be included on the title. Despite this, the parties displayed a common knowledge of the arrangements for the purchase of that property. The parties provided consistent information as to when they were living in the property and why, for a period, they moved out of that property into rental properties.

20. The Tribunal is satisfied that the parties’ financial arrangements are indicative of their living together with a mutual commitment to a shared life as husband and wife to the exclusion of all others and that their relationship is genuine and continuing. They have entered into commitments to purchase property and have shared liabilities. Their incomes are held in separate accounts, however, there savings are in effect being pooled to meet their day-to-day household expenses as well as other major expenses.

    Household

21. The parties have provided details of the homes they have been living in over the course of their relationship. They have entered into a number of different joint residential tenancies. The parties provided details of their living arrangements including the sharing of housework. The parties have a child together who was born in February 2020. The parties have the joint responsibility for the care and support of their child and have made arrangements for the care of the child when both parties are working.

22. The Tribunal is satisfied that the parties have established a household together in the various homes they have lived over the course of their relationship. The household they have established is indicative of their living together in a genuine and continuing relationship.

    Social aspects

23. Prior to the COVID-19 pandemic, the parties have travelled to various areas of Australia on holiday and participated in various social activities. These activities, not surprisingly, have been curtailed since the birth of their child in February 2020 and the various travel restrictions due to the COVID-19 pandemic. The parties would like to be able to travel together to Vietnam to spend time there with the applicant’s family. The sponsor has previously travelled to Vietnam by herself and stayed with the applicant’s parents in Haiphong.

24. The sponsor’s mother has provided a statement confirming that the parties represent themselves as being married to each other and that their relationship is recognised and supported by their respective families. The sponsor’s mother attended the hearing with the parties to look after Charlie. Friends have also provided statements in support of the application.

25. The Tribunal finds the parties represent themselves as being married to each other and that their relationship is recognised by their friends and family as genuine. The social aspects of the relationship support a finding that the parties are living together and that they have a mutual commitment to a shared life as husband and wife to the exclusion of all others.

    Commitment to each other

26. The parties first met each other in June 2015 and their relationship started after that. They were married on 12 March 2016. Have now be married for five years. The most significant event in their relationship is the fact that they have a child together, Charlie, who is one year old. The parties have made various commitments with each other, including starting a business with both parties as shareholders. They have committed to the purchase of a home together.

27. The fact that the parties have been living together for five years and now have a child together provides the strongest indication that the parties provide the degree of companionship and emotional support which would be expected in a genuine and continuing relationship. That they have a child and plan to have a second child together indicates they consider their relationship as long-term. The Tribunal is satisfied that the parties display the degree of commitment to each other indicative of the parties having a mutual commitment to a shared life as husband and wife to the exclusion of all others.

    Overall assessment

28. The Tribunal has considered all evidence before it both individually and cumulatively. The overwhelming weight of evidence supports a finding that the parties’ relationship is genuine. As stated above, the fact that the parties have had a child together and the care and love both parties give to that child provides the greatest indicator of the parties’ commitment to each other and their relationship.

29. 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 at the time of this decision. Therefore, the applicant meets cl 820.211(2)(a).

30. At the time of the application the applicant was sponsored by his spouse, the sponsoring partner, who was over the age of 18 and continues to sponsor him. At the time of the application, the applicant held a substantive visa. Accordingly, the applicant meets the criteria in cl.820.211(2)(c) and cl.820.211(2)(d) and meets the necessary criteria in cl820.211(2).

31. As the applicant meets the criteria in cl.820.211(2) at the time of the application and continues to meet that criteria at the time of the decision, the applicant meets the criteria in cl.820.221(1)(a).

32. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

    DECISION

33. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

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

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

    Hugh Sanderson
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A    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).