Nguyen (Migration)

[2024] AATA 2437

Nguyen (Migration) [2024] AATA 2437 (29 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Thi Thanh Huong Nguyen

VISA APPLICANTS:  Mr Huy Bon Nguyen
Mr Hoang Nam Nguyen

CASE NUMBER:  2010701

HOME AFFAIRS REFERENCE(S):          BCC2019/565060

MEMBER:Wan Shum

DATE:29 May 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicants Partner (Provisional) (Class UF) visas.

Statement made on 29 May 2024 at 10:50am

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 – review applicant declined to attend the scheduled hearing – applicant failed to provide requested information – visa applicant does not live in Australia – have only spent limited time together – not satisfied that the applicant is the spouse or a de facto partner of the sponsoring spouse – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, r 1.15, Schedule 2, cl 309.211

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 11 June 2020 to refuse to grant the visa applicants Partner (Migrant) (Class BC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named visa applicant (the visa applicant) applied for a Partner (Provisional) (Class UF) visa and Partner (Migrant) (Class BC) visa on 20 February 2019 based on his relationship with the review applicant. At that time, Class UF contained Subclass 309 and Class BC contained Subclass 100 (Partner).

3. The visa applicant had previously applied in Australia in 2013 for a Partner (Temporary) (Class UK) visa claiming that he was in a de facto relationship with the review applicant. However, that visa was refused because he did not satisfy the Schedule 3 criteria because he was not the holder of a substantive visa at the time the visa application was made. The visa applicant sought review of that decision but was unsuccessful and he eventually departed Australia on 13 July 2016.

4. The delegate in this case refused to grant the visa because the delegate did not consider the evidence sufficient to demonstrate that the visa applicant was the spouse, as defined under s5F of the Act, of a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

5. The review applicant sought review of that decision and was represented in relation to the review.

6. The Tribunal wrote to the review applicant advising that it had considered all the material before it relating to her application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the review applicant to give oral evidence and present arguments at a hearing on 28 May 2024. The invitation was initially sent out by email on 26 April 2024 to the email address of the representative in his capacity as the authorised recipient, however the email was returned undeliverable. That same day a copy was sent by post to the last residential address provided to the Tribunal. As no response had been received, on 22 May 2024 a copy of the invite was sent to the last email address from which correspondence had been received from the review applicant. Later that same day, a response was received advising that the review applicant would not be attending the hearing. A further email was sent to the review applicant seeking clarification that she did not wish to give oral evidence and consented to the Tribunal proceeding to a decision. No response was received, and she did not appear at the time and place the hearing had been scheduled.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The visa applicant is a national of Vietnam. Various documents were submitted with the application and subsequently in support of the existence of a genuine relationship.

9. On review, following a request from the Tribunal for additional information in May 2023, a copy of a joint bank account statement for the months from February to May 2023 and a Telstra phone bill as well as few photographs were received from the email address <[email protected]>. The writer stated that she was Thi Thanh Huong Nguyen, being the name of the review applicant in this matter. However, in response to an email on 22 May 2024 attaching a hearing invitation which was sent to that email address regarding the upcoming hearing, the Tribunal received a response in which it stated that the writer would not be attending. This matter has therefore been determined on the documentary evidence given to the Department and to the Tribunal.

10. The Tribunal notes that the review applicant had sought review of a decision to refuse to grant a Subclass 100 visa. However, the decision to refuse the visas to the visa applicants was primarily in respect of the Subclass 309 visa criteria, specifically the criterion regarding whether the visa applicant was the spouse of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. The delegate was not satisfied of this, and the Subclass 100 visa was refused simply on the basis that the visa applicant did not hold a Subclass 309 visa. In circumstances where an applicant cannot meet the relevant criteria for the Subclass 100 visa without being granted the Subclass 309 visa first and the application for review included a copy of the decision, which includes a separate decision to refuse to grant the Subclass 309 visa to the visa applicant, the Tribunal considers that the intention was to seek review of the Subclass 309 visa.

11. Given this, the issue on review is whether the visa applicant meets cl 309.211. Having considered the evidence provided and all of the circumstances of the relationship, the Tribunal has concerns as to the genuineness of their relationship and doubts that they have a mutual commitment as husband and wife at the time of this decision. The evidence of joint finances is limited to a copy of one page of a statement for a joint bank account held with an Australia bank for the period in February to May 2023 which reflects the receipt of Centrelink payments of $708.50 each fortnight followed by an ATM withdrawal in Marrickville of $700. However, as the visa applicant does not live in Australia, this does not demonstrate that the parties have pooled their financial resources. There is no evidence of a joint household at this time either. In terms of the social aspects, these are limited to a few photographs of the review applicant and visa applicant together at an airport and also with a small group of people during the review applicant’s travel to Vietnam in 2022. The review applicant also referred to travelling to visit the visa applicant in 2019. While the Tribunal accepts that the review applicant has travelled to Vietnam since the visa applicant returned there in 2016, there is no evidence of contact while apart. Given that the review applicant declined to attend the scheduled hearing, there is no evidence of their current circumstances. Having considered the information before it, the Tribunal does not consider that they have a mutual commitment to a shared life as husband and wife to the exclusion of others at the time of this decision. The Tribunal does not consider they are in a genuine and continuing married relationship.

12. In respect of the requirement that they live together or do not live separately and apart on a permanent basis, the Tribunal acknowledges that the parties live in different countries, with the visa applicant in Vietnam and the review applicant living in Sydney, Australia. Nevertheless, they have only spent limited time together since the visa applicant left Australia and the evidence, in the Tribunal’s view, does not reflect that of a married couple who are in a genuine and continuing relationship.

13. On the basis of the above the Tribunal is not satisfied that the requirements of s 5F(2) are met both at the time the visa application was made or now and finds that cl 309.211(2) is not met.

14. As the parties have provided evidence of their marriage, the visa applicant does not meet the alternative criterion in cl 309.211(3) for an intention to marry.

15. Given these findings, the visa applicant does not meet cl 309.211 and does not satisfy the criteria for the grant of the visa.

16. As the visa applicant does not satisfy a criterion for the grant of the visa, the decision under review must be affirmed.

    DECISION

17. The Tribunal affirms the decision not to grant the visa applicants Partner (Provisional) (Class UF) visas.

    Wan Shum
    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).