Nguyen (Migration)

[2020] AATA 1702

Nguyen (Migration) [2020] AATA 1702 (21 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Thi Truc Phuong Nguyen

VISA APPLICANT:  Mr Van Ut Huynh

CASE NUMBER:  1919562

DIBP REFERENCE(S):  2014026745 OSF2014026745

MEMBER:Christine Kannis

DATE:21 February 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211(2) of Schedule 2 to the Regulations

·cl.309.221 of Schedule 2 to the Regulations

Statement made on 21 February 2020 at 6:14am

CATCHWORDS
MIGRATION – refusal – Partner (Provisional) (Class UF) visa - subclass 309 – Federal Court remittal – copy of Marriage Certificate provided – applicants are currently in a genuine spousal relationship– marriage is valid for the purposes of the Act– decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 65, 360
Migration Regulations 1994, r 1.15, Schedule 2, cls 309.211, 309.221

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 22 October 2015 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 14 October 2014 on the basis of his relationship with his sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.309.211(2) because the delegate was not satisfied that his relationship with the review applicant met the definition of spouse under the Act.

4. The visa applicant sought review of the decision and on 23 February 2017 the Tribunal (differently constituted) conducted a hearing after which it affirmed the decision.

5. The visa applicant sought judicial review of the decision of the first Tribunal and on 29 November 2018 the Federal Circuit Court dismissed the application for review.

6. The visa applicant appealed the decision and on 14 June 2019 the Federal Court of Australia allowed the appeal and set aside the decision of the Federal Circuit Court and remitted the matter to the Tribunal to reconsider and determine the matter according to law. 

7. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

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

9. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the relationship between the visa applicant and the review applicant meets the definition of ‘spouse’ in section 5F of the Act.

12. Section 5F 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 of the parties’ relationship, the nature of their household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.

13. Clauses 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen.   

14. The first Tribunal considered statutory declarations from a number of family members that stated that they were aware of the married relationship between the review applicant and the visa applicant, described their interactions with the couple, and stated that they believed the relationship was genuine and continuing. The first Tribunal referred to the statutory declarations but found they did not ‘set out any reasons for why the family members believed the relationship was genuine’. 

15. In the application for judicial review and the appeal the review applicant contended, among other things, that the statutory declarations set out numerous reasons why the relationship was genuine and continuing and therefore the first Tribunal failed to consider and make findings about the reasons that were advanced. The Federal Circuit Court found that the first Tribunal had expressly referred to the statutory declarations, had taken them into account, and had formed an adverse finding about the reasons advanced for believing the relationship to be genuine.

16. The Federal Court of Australia held that the first Tribunal approached the matter on the erroneous basis that there were no reasons advanced by a number of family members to support their view that the relationship was genuine when that was not the case. The consequence was that evidence about the genuineness of the relationship had not been considered and the first Tribunal thereby manifested a failure to discharge the statutory obligation to consider the application.

17. Prior to the scheduled hearing the review applicant provided additional documentation which included but was not limited to statutory declarations, evidence of phone contact between the parties and photos.

    Are the parties validly married?

18. A certified copy of a Marriage Certificate indicating the parties were married in Vietnam on 12 January 2014 and the marriage was registered on 13 January 2014 was provided. On the basis of the written evidence before it, and in the absence of any evidence to the contrary, the Tribunal concludes that the marriage satisfies the requirements for a valid marriage for the purpose of the Act as required by s.5F(2)(a).

19. The review applicant has two children from a previous relationship and the visa applicant has a son from a previous marriage.

20. The review applicant and the visa applicant each made a statutory declaration dated 13 February 2017 (the 2017 statutory declarations) in which they provided information about the relationship and the r.1.15A(3) factors. Both parties made subsequent statutory declarations in January 2020 (the 2020 statutory declarations).

21. The Tribunal considered the evidence against the r.1.15A(3) factors.

    Whether the parties are in a spouse or de facto relationship

    Financial aspects

22. The Tribunal considered the evidence in relation to the financial aspects of the parties’ relationship including the extent of pooling of financial resources and any sharing of day-to-day household expenses.

23. In their respective 2017 statutory declarations the parties each said that due to work and financial constraints they are unable to frequently visit each other. The review applicant said the visa applicant’s brother lent them money to enable her to visit Vietnam and the loan is to be repaid by both of them. The 2020 statutory declarations made by the review applicant, the visa applicant and a statutory declaration made by the visa applicant’s brother on 22 January 2020 contain consistent evidence with respect to this loan.

24. Evidence was provided that the review applicant sent the visa applicant funds during 2014 and 2015 on seven occasions, five times in 2014 and twice early in 2015. In their respective 2017 statutory declarations and 2020 statutory declarations the review applicant and the visa applicant refer to their limited incomes from their employment and their limited savings.  The review applicant lives with her parents and her two children.  She has a small income and supports her family on that income. 

25. The Tribunal accepts that the parties reside in different countries and that they have not established any joint financial arrangements. They both have a limited income and as such there has been no pooling of financial resources and sharing of day to day expenses. The Tribunal gives this factor little weight.

    Nature of the household

26. The Tribunal considered the evidence in relation to the nature of the household including any joint responsibility for care and support of children, the parties’ living arrangements and any sharing of housework.

27. At the date of application the parties lived in different countries and continue to do so. The review applicant lives in Perth and the visa applicant lives in Vietnam.

28. The review applicant travelled to Vietnam to visit the visa applicant in 2014, 2016 and in 2018. During these visits the parties stayed in hotels and with family members.

29. In his 2020 statutory declaration the visa applicant said the review applicant brought her two children with her during her trip to Vietnam in 2018. He said they shared the responsibility for looking after the children. He said when he lives in Australia he wants to take them to school and pick them up and help them do their homework.

30. The Tribunal accepts that the parties reside in different countries and that they have not established a household together. The Tribunal placed no weight on this factor.

    Social aspects of the relationship

31. The Tribunal considered the evidence in relation to the social aspects of the relationship including whether parties represent themselves to other people as being married to each other, the opinion of friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities.

32. The first Tribunal considered the failure of any family members of the review applicant to attend the wedding suggested that her family did not consider it to be a genuine and on-going relationship.  In her 2017 statutory declaration she said her family fully support her marriage to the visa applicant.  She said their wedding ceremony in Vietnam was low key and her family members did not attend due to health issues and other commitments. She said it wasn’t seen as an important event that her family had to attend because it was her second relationship. In his 2017 statutory declaration the visa applicant said his family paid for and organised the wedding. He said about 80 people attended and they were his relatives and friends. A number of photographs of the parties’ wedding were provided.  The photographs were of the parties together and with other unidentified persons.

33. The Tribunal considered the documentary evidence and accepts the reasons provided by the review applicant, her mother and her sister that they did not attend the wedding because of financial constraints, health issues and because the review applicant had been in a previous long term relationship and it was therefore not considered to be her first marriage. The Tribunal noted that the review applicant told the first Tribunal she has no friends in Vietnam as she grew up in Australia.   

34. In her 2017 statutory declaration the review applicant said her children call the visa applicant dad. She had not taken them to Vietnam before 2018 because she couldn’t afford the airfares costs. She said despite the language barriers they talk and say hello to the visa applicant when the parties are talking by phone.  In his 2017 statutory declaration the visa applicant said when the review applicant was in Vietnam in 2016 they video called her children. He said they know and accept that he is their stepfather.

35. In her 2017 statutory declaration the review applicant said her parents call the visa applicant son and his parents call her daughter.  She said her brother and sister have met the visa applicant. She said the visa applicant’s son calls her mum and knows she is his stepmother.

36. In her 2017 statutory declaration the review applicant said when she visits the visa applicant in Vietnam she stays with him at his house. His parents and son also live in the house. She said when she visits Vietnam they spend time alone together as well as spending time with family and friends. Photos of the parties with the visa applicant’s son and with unidentified persons were provided. The photos included the parties sharing meals with other people. She said the visa applicant always introduces her as his wife to family and friends in Vietnam.

37. In her 2020 statutory declaration the review applicant said during her trip to Vietnam in 2018 she stayed with the visa applicant’s relatives and she met his uncle. She said they were introduced as a couple to family members. Her sister and her husband visited her and the visa applicant when they were in Ho Chi Minh City and they all went out to dinner together. In his 2020 statutory declaration the visa applicant said his parents and relatives consider the review applicant to be part of their family and said when she visits Vietnam they enjoy sitting together having family dinners.

38. Statutory declarations made by the parties’ family members were provided stating that they are aware of the relationship and believe that it is genuine. The review applicant’s mother made statutory declarations in 2017 and 2020 in which she refers to the daily communication between the parties and to spending time with them together in Vietnam in 2018. Given that the review applicant lives with her mother the Tribunal gives this evidence some weight.

39. The review applicant’s sister, Ms Elsia Bu, made statutory declarations in 2016 and 2020. Her brother, Mr Thanh Sang Nguyen, made statutory declarations in 2017 and 2020. He said   he talks to the review applicant regularly about her relationship with the visa applicant and said she gives a positive reply. He said he believes their plans are to live together in Australia and buy a house in the future. A statutory declaration made by the review applicant’s brother, Mr Thanh Dung Nguyen, in 2020 was provided. He said that since meeting the visa applicant the review applicant is happier than she has previously been.

40. The visa applicant’s siblings reside in Australia and are known to the review applicant and her family.  Statutory declarations made by two of the visa applicant’s brothers in 2017 and 2020 were provided. They indicate they recognise the marriage and believe the relationship is genuine. Mr Tan Hung Huynh said his parents were happy with the review applicant and said she gets along well with the family. Mr Thanh Phong Huynh said his parents approve of the marriage and love the review applicant. He said he lent his brother money to pay for the review applicant’s airfare to Vietnam. He said all their family members know the parties are married and that many of their family and friends attended the wedding ceremony. He said the visa applicant seems very happy since meeting the review applicant. He said the visa applicant has told him that they would like to have a child but their attempts had not been successful.

41. The Tribunal was provided with a number of photographs of the review applicant’s trip to Vietnam in 2016.  The photographs are of the review applicant and visa applicant together as well as with other unidentified persons.

42. The first Tribunal noted that there was very little information provided by the review applicant as to the awareness of others in Australia of the relationship and their opinion as to the nature of that relationship; and whether the review applicant represents herself as being in a married relationship to others outside her immediate family and the visa applicant’s immediate family who reside in Australia. The review applicant told the first Tribunal that she has no friends due to her mental health issues. In her statutory declarations made in 2017 and 2020 the review applicant says she does not have any friends and does not socialise with anyone in Perth. In her 2020 statutory declaration she said her boss knows about her husband in Vietnam. In her statutory declarations the review applicant provides information about her mental health issues dating back to being bullied at school. She said the visa applicant and her mother are the only ones she can talk to about the relationship. The Tribunal accepts this evidence.

43. The Tribunal accepts that the parties reside in different countries and that it is difficult for them to plan and undertake joint social activities on a regular basis.  The Tribunal accepts the review applicant’s evidence that they have socialised with family and friends during her trips to Vietnam. Her evidence, contained in her statutory declarations, was that they have spent time as a couple with members of the visa applicant’s family as well as with her sister and her husband during her trips to Vietnam.

44. The Tribunal finds that the statutory declarations provided by family members are consistent with the parties representing themselves to other people as being married to each other and gives some weight to this factor.

    The nature of the parties’ commitment

45. The Tribunal considered the nature of the persons’ commitment to each other including the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other, and whether they see the relationship as long-term.

46. The parties commenced communication by phone calls in November 2009 however they did not meet in person until January 2013. They remained in contact and in November 2013 the visa applicant proposed marriage and they were married on 12 January 2014. The review applicant has travelled to Vietnam in 2014, 2016 and 2018. Evidence of this travel was provided. 

47. In her 2017 statutory declaration the review applicant said they are not able to frequently visit each other and they rely on phone and video calling. She said she wants her children to get to know the visa applicant as their stepfather. She said the visa applicant provides her with emotional support and she feels her mental health and overall health would improve a lot if he moved to Australia. She said their family planning had been delayed because they were living apart. 

48. In their respective 2017 statutory declarations the parties each said they communicate through video calling and Messenger. The review applicant said the visa applicant provides her with emotional support and loves her for who she is and makes her feel special. She said he is her best friend. They each said the review applicant’s trip to Vietnam in July 2016 strengthened their relationship. The visa applicant said he loves the review applicant unconditionally.

49. In their respective 2017 statutory declarations the parties each said their future plans included saving money and buying a house. They said they would let nature take its course in terms of having children together and they would like to have one child that is the result of their union.

50. In her 2020 statutory declaration the review applicant said she fell ill with shingles during her trip to Vietnam in 2018. She said the visa applicant looked after and applied cream to the rash every morning and every night. The visa applicant provided consistent evidence in his 2020 statutory declaration.

51. In her 2020 statutory declaration the review applicant said she speaks to the visa applicant by phone every night. He gives her advice and calms her down when she is angry with her children. She said he loves her for herself and not because of how she looks. They have talked about owning a farm together in the future. They want to buy a house and had wanted to have a baby together however that may not now be possible. She said it has been seven years since they started the journey of trying to be together and she feels very stressed a lot of the time. She said the visa applicant provides her with emotional support when she is stressed.

1. In his 2020 statutory declaration the visa applicant said he and the review applicant want to have children together but this may not happen now that she is older.

2. In a statutory declaration made by the review applicant’s mother in 2020 she said before meeting the visa applicant her daughter seemed really stressed and she now seems happier.

3. The Tribunal finds that the parties see their relationship as long-term and that the visa applicant provides the review applicant with emotional support. The Tribunal finds that although they have spent limited time together they provide each other with companionship when the review applicant visits Vietnam and through their daily communication when the review applicant is in Australia.

   Conclusion

4. The visa applicant and the review applicant have been married for six years and since that time the review applicant has travelled to Vietnam three times. They have not shared a household or pooled financial resources or shared day-to-day expenses. The Tribunal accepts that they reside in different countries and have limited financial resources.

5. The evidence of social recognition of the parties’ relationship was limited to evidence provided by family members.  Given that the parties both live with their respective parents the Tribunal places weight on the evidence provided by family members. There was no evidence from friends and the Tribunal accepts that the review applicant has very limited social relationships in Perth.

6. The Tribunal finds that at the time of application and at the time of decision the parties were and remain in a committed long-term relationship. In making this determination the Tribunal has taken into account that the parties have been married for six years, and that their respective families accept the marriage. The Tribunal also places weight on the parties’ consistent evidence with respect to their daily communication and the emotional support the visa applicant provides to the review applicant.

7. Having regard to all of the evidence, the Tribunal concludes as follows:

   • The parties are married to each other under a marriage that is valid for the purposes of the Act;
   • they are not living separately and apart on a permanent basis;
   • they have a mutual commitment to a shared life together to the exclusion of others; and
   •  that the relationship is genuine and continuing.

8. 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 the time of this decision.

9. Therefore the visa applicant meets cl.309.211(2) and cl.309.221.

10. 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 309 visa.

    DECISION

11. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.211(2) of Schedule 2 to the Regulations

    ·cl.309.221 of Schedule 2 to the Regulations

    Christine Kannis
    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).