Nguyen (Migration)

[2020] AATA 3300

Nguyen (Migration) [2020] AATA 3300 (3 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ngoc Hai Nguyen

CASE NUMBER:  1906108

DIBP REFERENCE(S):  BCC2015/1759372

MEMBER:Justin Meyer

DATE:3 June 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

Statement made on 3 June 2020 at 4:49pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – not a genuine spousal relationship – no response to request for information – limited evidence of relationship – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5CB, 5F, 65, 359C(1)), 360(3), 363A
Migration Regulations 1994, Schedule 2 cl 801.221(2), r 1.15A(3)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 21 February 2019 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant was represented in relation to the review by her registered migration agent.

3. The applicant applied for the visa on 19 June 2015 on the basis of her relationship with her sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 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.

4. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221(2) because subclause (2) requires that an applicant is, at the time of decision, the spouse (as defined under section 5F of the Act) or the de facto partner (as defined under section 5CB of the Act) of the sponsoring partner.

5. As the sponsor had withdrawn sponsorship and the applicant had not provided evidence that she continued to be the spouse or de facto partner of the sponsoring partner (as defined), the delegate found that the applicant did not satisfy subclause (2).

6. The delegate also found that Subclauses (3), (4), (5) and (6) prescribe certain circumstances in which an applicant may continue to be considered for the grant of permanent residence, where the relationship with the sponsoring partner has ceased. These are, in summary:

   ·the sponsoring partner has died;

   ·the applicant or dependent child is the victim of family violence committed by the sponsoring partner; or

   ·the applicant and sponsoring partner share custody, access or maintenance obligations in respect of any dependent children.

7. The delegate was not satisfied that the applicant met the requirements of subclauses (3), (4), (5) or (6) because at the time of decision she had not made any claims or provided any evidence regarding the death of the sponsor, any incidence of family violence, or the existence of a child of the relationship.

8. On 23 September 2019, the Tribunal wrote to the applicant pursuant to section 359 of the Act, inviting her to provide information to support her claims, noting that there is information on the Department’s file indicates that her relationship with the sponsoring partner has ended and that the sponsoring partner has withdrawn the sponsorship. This information is relevant because the Tribunal may conclude that at the time of this decision, the applicant was no longer the spouse or de facto partner of the sponsor. If the Tribunal so found and, if any of the alternative criteria for the grant of the visa were not met, the Tribunal would find against applicant. The applicant was informed that if she was no longer in a relationship with the sponsoring partner, there are exceptions under which the Partner visa could be granted. These include those noted above and she was invited to provide relevant information.

9. The applicant requested additional time to make submissions, and noted that the relationship had ceased. The Tribunal agreed to an extension of time until 21 October 2019. Another extension was sought to gather the relevant documentary evidence. The Tribunal however refused the request to extend for more additional time for submission and communicated this in writing on 4 November 2019, as reasonable time had passed.

10. No further information has been submitted to the Tribunal.

11. The Tribunal is satisfied that the applicant was sent an invitation to comment on information under section 359 of the Act. The invitation, dated 23 September 2019, was sent to the review applicant, at the last address for service provided by the applicant in connection with her application for review.

12. Where an applicant is invited to provide information under section 359 and fails to provide it within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information (subsection 359C(1)). In these circumstances, the applicant is not entitled to appear before the Tribunal (subsection 360(3) and section 363A).

13. The Tribunal did not receive a response to that invitation within the timeframe specified when writing to the applicant, which was by 21 October 2019 other than a brief claim in correspondence that the relationship had broken [down], but little or negligibly else.

14. The Tribunal has found that the applicant did not provide any other comments within the specified period of 14 days from the date of inviting comment, or within the extended period of an additional 14 days.

15. In the circumstances, the Tribunal has decided to proceed to make a decision on the review without taking further action to obtain information from the applicant.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in the present case is whether the parties are in a genuine and continuing spousal relationship.

    Whether the parties are in a spouse or de facto relationship

17. Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

18. ‘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 husband and wife 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 as to 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 sponsor’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.

    Are the parties validly married?

19. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. I am satisfied that the parties married on the basis of a marriage certificate of New South Wales, the date of marriage being 28 May 2015.

20. 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 spousal relationship met?

21. Having regard to the considerations for a spousal relationship, the Tribunal makes the following findings.

22. I find that the parties are not in a genuine and continuing spousal relationship.

23. The Tribunal was supplied with little response or evidence from the applicant in response to its letter of 23 September 2019. The Tribunal, not having information supplied to it, therefore considers the information and evidence contained in the Department of Home Affairs’ file.

24. I consider the criteria set out in r.1.15A(3).

25. The delegate in their decision of 21 February 2019 made reference to the criteria set out in r.1.15A(3).

26. The Tribunal notes that no submissions (other than the brief notations mentioned above) have been made to the Tribunal in this appeal.

27. The Tribunal considers whether there is information before it to consider evidence on how the parties intend to manage their finances or maintain a household in the future.

28. A bank statement in joint names was submitted for two months until October 2016. There are six entries. A subsequent 2017 statement has nine entries. There is another similar joint cheque account with entries. There is also a brief letter form the applicant’s employer stating that she is a good worker. There is a payslip showing that she earns approximately AUD26,000 per annum. The parties said in a statement that they ran a store together which went bankrupt and they had to depart their premises in 2016. The applicant stated in a statutory declaration that they placed all their savings into a joint account and used that account for all household and everyday costs.

29. This is the extent of the evidence in relation to the financial aspect. It does not provide the Tribunal with information of weight on joint ownership of assets, liabilities, pooling of resources or commitments of a financial nature. Legal obligations in a financial sense to each other not apparent. Nor is there information about the sharing of day-to-day household expenses, other than again through unsupported or thinly supported claims about expenses.

30. As a result I give little weight to financial factors.

31. In regards to the nature of the household, the information before the Tribunal is as follows: The parties are depicted in domestic scenes in photographs submitted. The parties stated that they had moved to a suburb in New South Wales.

32. I also note that the applicant made a statutory declaration of 15 December 2016 stating that household work is shared equally with the sponsor doing gardening for example. I note that there is utilities account information and similar but little more. Lighter comments about the parties living together mare made or implied by third parties.

33. This is generic and general in its description of household matters.

34. It is not apparent that there is a shared household, including matters such as responsibility for the care and support of children, living arrangements of the persons, and any sharing of responsibility for housework.

35. As a result I give little weight to household factors.

36. In regards to social factors, the applicant writes in her statement that the parties make visits together including weddings and the like.

37. There are statutory declarations from other persons both general and generic in their descriptions of the parties’ relationship, mentioning matters such as visiting, including to wider family.

38. Thus there is little before the Tribunal other than statutory declarations and statement which confirm that the declarants have met both parties, and photos with some other people including relatives. However the statements are brief. Future social plans are not seen. I accept that they have visited others together and met socially to some extent.

39. There is negligible other corroboration of the social recognition of the parties and that which exists is minimal and general.

40. As a result I give little weight to social aspects.

41. The Tribunal considers the information before it on the nature of the parties’ commitment to one another. I note that a marriage certificate has been provided. Whilst there is evidence of a legal marriage, negligible other information, if any, illustrates commitment between the parties to a genuine and continuing spousal relationship to the exclusion of all others. I note that the applicant claims to have received support post her divorce from the sponsor. The declarations from others are general although there are claims that the parties are mutually supportive.

42. The applicant in her statement claimed:

    “The first time I came to Australia, in 2009, I was lucky to have met John at my friend’s house party. We were introduced to each other at that party and I can remember how happy I was to have met someone so patient as John and after our first meeting I knew I had felt something for John. Though I felt, I was in the process of my divorce being finalised. I had spoken to john at my current circumstances and because I was due to fly back to Vietnam we had mutually decided that it is best to just maintain a friendship.

    In 2015, during my second visit to Sydney, my friend reintroduced john to me. Knowing that my divorce was finalised and I was newly singly John wasted no time and asked me to coffee many times.

    During our coffee dates, john had expressed feeling for me. He’s showed me that he is genuinely looking for a life partner. I can see then that John is the perfect perform for me.

    At the age of 50 and taking a leap of faith, John had proposed and we got married on 28 May 2015. We then celebrated our marriage, with close friends and family on 07 June 2015. After we got married, John and I moved to [address]. This was a flat above a take away store where I was working at the time. We lived there to August 2016, the business then went bankrupt and I was forced to move out. So we then moved to [street and suburb] This is where we are still currently living at.

    During our marriage, there have been many obstacles but John was there for me and I have never felt this happy in my entire life. Most of all, John makes me feel blessed to have had another chance of happiness. He makes me feel that all these hurdles and obstacles are not much because John is there to support me through it all. I never would have imagined there would be someone as John willing to love a divorced woman as old as I am but John has given me faith that we can be happy.

    Ngoc Hai”

43. I note that information about companionship and emotional support being drawn and the parties seeing the relationship as being long-term is not otherwise present. I note that here is no claim about care of children and that the parties are from older age groups.

44. Therefore it is not apparent that the relationship is long-term, that emotional support is drawn from one another, that there is companionship, or that there is a commitment to a shared life together, especially bearing in mind the age of the documents of several years ago and the acceptance that the relationship has ended.

45. For these reasons I give little weight to the aspect of commitment.

    Conclusions

46. The Tribunal finds that 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), based on their application that their relationship status was married and their marriage certificate of New South Wales, the date of marriage being 28 May 2015.

47. The Tribunal is not satisfied that the applicant and the sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others.

48. The Tribunal is also not satisfied that the relationship is genuine and continuing. They therefore do not meet the requirements of s5F(2)(b) or s.5F(2)(c) for a spouse relationship.

49. Additionally, the Tribunal is not satisfied that the applicant and the sponsor live together or did not live separately and apart on a permanent basis. Accordingly, they do meet the requirements of s5F(2)(d) for a spouse relationship.

50. Given these findings the Tribunal is not satisfied that the parties are in a spousal relationship at the time of decision. Therefore, the Tribunal finds that the applicant does not meet cl.801.221(2)(c).

51. Furthermore, the applicant has not claimed (other than in an allegation to the Tribunal in emails about being a family violence victim), and there is not evidence before the Tribunal, that the applicant meets the alternative criteria in cl.801.221 (2A), (3), (4), (5) and (6). [Details deleted].

52. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

53. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

    Justin Meyer
    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).