Nguyen (Migration)

[2024] AATA 898

Nguyen (Migration) [2024] AATA 898 (18 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bao Dung Nguyen

REPRESENTATIVE:  Mr Muhammad Ali Sukhera (MARN: 1577651)

CASE NUMBER:  1932130

HOME AFFAIRS REFERENCE(S):          BCC2018/2952835

MEMBER:Margie Bourke

DATE:18 April 2024

PLACE OF DECISION:  Melbourne

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(20 and cl.820.221 of Schedule 2 to the Regulations.

Statement made on 18 April 2024 at 4:29pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – validly married – financial, household and social aspect of relationship and nature of commitment – information, evidence, submissions and supporting statements – purchase of house and plans for children – duration of relationship and time since delegate’s decision – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5F(2), 65, 360(2)(a)

Migration Regulations (Cth), r 1.15A(3), Schedule 2, cl 820.211(2)(a), 820.221

CASE

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 7 August 2018 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). 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 visa applicant did not satisfy cl.820.211 because the delegate was not satisfied the applicant had provided sufficient evidence and information to demonstrate he is the spouse of the sponsoring partner within the meaning of s.5F(2) at the time of application.

4. The Tribunal has considered the Department’s decision record dated 8 November 2019, and the information provided to the Department in support of the application. The Tribunal has considered the information, evidence and submissions provided to the Tribunal, which was not available to the Department, and confirms the ongoing relationship between the applicant and the sponsor at the time of decision. The Tribunal has decided that it can make a decision favourable to the applicant based on the information available to it, without proceeding to a hearing, pursuant to s.362(2)(a) of the Act. 

5. The applicant was represented in relation to the review.

6. The following are the written reasons that the Tribunal has concluded the matter should be remitted back to the Department for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   SPOUSE/DE FACTO (cl.820.211(2)(a), (cl.820.221)

   Whether the parties are in a spouse or de facto relationship

7. 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. Based on the New South Wales birth certificate of the sponsor, the Tribunal is satisfied that she is an Australian citizen by birth. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.

8. ‘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.

   Information, evidence and submissions provided to the Tribunal

9. In April 2024, the applicant provided the T will ribunal with further information including legal submissions, a detailed statutory declaration from the review applicant dated 9 April 2024, a detailed statutory declaration from the sponsor dated 10 April 2024, four statutory declarations dated April 2024 from the applicant’s sister, the applicant’s sister-in-law and friend of the applicant, and from the sponsor’s sister, and a statutory declaration from the applicant’s brother-in-law dated April 2023, copy of the parties’ joint bank statement dated March 2024 (including the home loan account and the offset savings account), and four photos dated Easter 2024.

10. In May 2023, the applicant provided extensive submissions in support of the review, including the sponsor’s superannuation statement confirming the applicant is her spouse and 100% beneficiary, joint bank account statements dated May 2023 which recorded both the applicant and the sponsor’s salaries deposited into the account, residential tenancy agreement dated May 2020, joint receipts from the landlord, applicant’s tax return (2020) and the sponsor’s tax return (2020 & 2021) in which they declare each other as their spouse, joint bank statements for the years 2018 - 2022, joint utility bills, correspondence to their recorded residential addresses (noting the parties moved residence), evidence of joint travel in 2020 and 2022, evidence of the joint purchase of real estate, the collection of photos in many social settings, collection of receipts and invoices, collection of correspondence and the applicant’s employee details dated 2 June 2021.

11. The Tribunal has also considered the information provided to the Department in support of the application, including the application form, the sponsorship form, form 80, identification documents, marriage certificate, statutory declaration from the review applicant dated 8 October 2019, statutory declarations from the review applicant’s brother and the review applicant sister-in-law, the review applicant’s student visa grant dated 10 March 2018 (relevant at the time of application), evidence of joint travel, photographs and other assorted documents.

12. The Tribunal has noted the length of time since the Department’s decision dated 8 November 2019, and this matter being considered by the Tribunal on review. There is no information before the Tribunal to indicate that the applicant and sponsor have not maintained their relationship during this period of time. The Tribunal assesses that the evidence positively indicates that the applicant and sponsor have continued in a spousal relationship since the time of application for the visa.

    Are the parties validly married?

13. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. Based on the certificate of marriage, the Tribunal is satisfied that the applicant and sponsor were married at Garrison Point in New South Wales on 4 August 2018. 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?

14. Financial aspects of the relationship: – the Tribunal is satisfied that the applicant and the sponsor are both employed, and at the time of decision jointly own real estate, namely the unit in which they live. The Tribunal is satisfied that the applicant and the sponsor had joint liabilities at the time of application including rent commitments and utility bills, and at the time of decision have the joint liability of the home loan, and other household liabilities including utility bills. The Tribunal is satisfied that the applicant and the sponsor pool their financial resources, including in relation to major financial commitments, and manage a joint bank account, including a joint home loan and a joint offset savings account, and both their salaries are paid into the joint bank account. There is no evidence before the Tribunal that one person in the relationship has any legal obligation in respect of the other excluding their joint contractual obligations in the home loan. The T’s ribunal is satisfied on the basis of the analysis of the joint bank account that the applicant and the sponsor share the day-to-day household expenses.

15. The evidence of the financial aspects of the relationship indicates that the applicant and the sponsor are in a genuine and continuing relationship, at both the time of application and at the time decision.

16. Nature of the household: – the Tribunal is satisfied that the applicant and the sponsor do not have joint responsibility for the care and support of children. The Tribunal is satisfied that the applicant and the sponsor live together as a married couple as claimed, in rented accommodation until May 2023, and at the time of decision in a home they have purchased together. The Tribunal is satisfied that the applicant and the sponsor share the responsibility for the house work in the homes they have rented and the home they currently own.

17. The evidence of the nature of the household indicates that the applicant and the sponsor are in a genuine and continuing relationship, and live together, and not separately and apart, on a permanent basis, at both the time of application and at the time of decision.

18. Social aspects of the relationship: – the Tribunal is satisfied that the applicant and the sponsor represent themselves to other people as being married to each other. The Tribunal is satisfied that the opinion of the relatives, friends and acquaintances of the applicant and the sponsor is that their relationship is genuine, positive, stable and supportive. The Tribunal is satisfied that the basis on which the applicant and the sponsor plan and undertake joint social activities is to spend time together outside their employment, to spend time with family, to attend functions together and to travel together.

19. The evidence of the social aspects of the relationship indicates that the applicant and the sponsor have a mutual commitment to a shared life as a married couple to the inclusion of all others, and are in a genuine and continuing relationship, at both the time of application and at the time of decision.

20. The nature of the persons’ commitment to each other: – the Tribunal is satisfied that the applicant and the sponsor were married on 4 August 2018, and lodged the application for the visa on 7 August 2018. At the time of application, the Tribunal finds the duration of the spousal relationship is three days; and at the time of decision the Tribunal finds the duration of the spousal relationship is five years and eight months. The Tribunal is satisfied that the applicant and sponsor have lived together as a married couple since their marriage on 4 August 2018. Similarly, the Tribunal finds that at the time of application, the applicant and sponsor had lived together for three days, and at time of decision the applicant and sponsor have lived together for five years and eight months. The Tribunal is satisfied based on the statements of the applicant, the sponsor, their relatives and friend that the applicant and the sponsor provide a degree of companionship and emotional support to each other. The Tribunal is satisfied that the applicant and the sponsor are married and have bought a house together, and plan to have children and therefore the Tribunal is satisfied that the parties see their relationship as long-term.

21. The evidence of the nature of the persons’ commitment to each other indicates that the applicant and the sponsor have a mutual commitment to a shared life as a married couple to the exclusion of all others, are in a genuine and continuing relationship, and live together, and not separately and apart, on a permanent basis, at both the time of application and at the time of decision.

22. Conclusion: – the Tribunal has considered the circumstances of the relationship as set out in reg 1.15A(3) based on an assessment of all the written evidence, submissions and information provided to it. The Tribunal is satisfied based on its assessment of the evidence of the relationship, that the applicant and the sponsor have a mutual commitment to a shared life as a married couple to the exclusion of all others, are in a genuine and continuing relationship, and live together, and not separately and apart, on a permanent basis, and therefore meet the definition of a spouse relationship in s.5F(2)(b), (c) and (d). Further the Tribunal is satisfied that the applicant is the spouse of the sponsor within the meaning of s.5F(2)(b), (c) and (d) at the time of application and the time of decision.

23. Based on the above findings, the Tribunal is satisfied that the applicant is the spouse of the sponsor within the meaning of s.5F(2)(a), (b), (c) and (d) at the time of application and at the time decision.

24. Accordingly, 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.

    Time of application findings: cl.820.211(2)

25. The Tribunal is satisfied that the applicant is the spouse of a person who is an Australian citizen.  Therefore the applicant meets the requirements of cl.820.211(2)(a).

26. Based on the sponsorship form, and the identity documents in relation to the sponsor, the Tribunal is satisfied that the applicant is sponsored by the applicant’s spouse who has turned 18 years at the time of application. Therefore the applicant meets the requirements of cl.820.211(2)(c).

27. The Tribunal has considered the information recorded in the application for the visa, and the Visa Entitlement Verification Online which confirms that the visa applicant was granted a student visa subclass 500 on 10 March 2018, and was the holder of this substantive visa at the time of application on 7 August 2018. As the Tribunal is satisfied the applicant is the holder of a substantive visa at the time of application, the requirements of cl.820.211(2)(d) do not apply.

28. The Tribunal is satisfied that the applicant satisfies the criteria in cl.820.211(2)(a), (c) and (d). Therefore at the time of application, the applicant meets the requirements of cl.820.211(2).

    Time of decision findings: cl.820.221

29. The Tribunal is satisfied that the applicant is the spouse of the sponsor within the meaning of s.5F(2) at the time of decision. The Tribunal is satisfied that the applicant continues to meet the requirements of cl.820.211(2) at the time of decision and therefore satisfies the criteria in cl.820.221(1)(a).  Accordingly the Tribunal finds that the applicant meets the requirements of cl.820.221.

30. Therefore the Tribunal is satisfied that the applicant meets cl.820.211(2) and  cl.820.221.

31. 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

32. 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) and cl.820.221 of Schedule 2 to the Regulations.

    Margie Bourke
    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).