Nguyen (Migration)

[2020] AATA 481

Nguyen (Migration) [2020] AATA 481 (18 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Tra Phuong Thi Nguyen

VISA APPLICANT:  Mr Duy Manh Nguyen

CASE NUMBER:  1832398

DIBP REFERENCE(S):  BCC2017/4979924

MEMBER:Justin Meyer

DATE:18 February 2020

PLACE OF DECISION:  Melbourne

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 of Schedule 2 to the Regulations

·cl.309.221 of Schedule 2 to the Regulations

Statement made on 18 February 2020 at 1:37pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – financial aspects – nature of household – social aspects – nature of commitment – significant written and photographic evidence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 360
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls, 309.211, 309.221

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 Immigration on 26 October 2018 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 28 December 2017 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). 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.309.211 because she considered there to be insufficient evidence of a genuine and continuing spousal relationship.

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

5. The review applicant was invited appear before the Tribunal on 7 April 2020 to give evidence and present arguments.

6. However, the Tribunal subsequently made further consideration of the applicant’s extensive submission, and the Tribunal considered that a hearing was no longer required. Pursuant to s.360(2)(a) of the Act, the Tribunal considered that it should decide the review in the applicant’s favour on the basis of the material before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the parties are in a genuine spousal relationship.

   Whether the parties are in a spouse or de facto relationship

9. Clause 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. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

10. ‘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 visa applicant’s and review applicant’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. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP[2017] FCAFC 206.

    Are the parties validly married?

11. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties submitted to the department a marriage certificate date 23 March 2016, taking place in Footscray Victoria.  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

12. The parties provided a bank statement of a joint account for the period of August 2017 to September 2017. The statement indicates that the joint account was opened on 20 March 2015. It displays a number of transactions including cash deposits, cash withdrawals, direct debits for gym memberships, and rent and utility payments.

13. In his statement submitted to the Department on 23 January 2018, the visa applicant indicated that the parties opened a Vietnamese restaurant. He submitted photos of the parties in front of this restaurant, and evidence of a business transaction related to the restaurant.

14. The parties state that they commenced their business in 2016 and have completely combined their finances. Their primary source of income is from their business in the form of regular base salaries, and they work together each day in the business.

15. The visa applicant has listed the review applicant (sponsor) as the sole beneficiary of his superannuation benefits. The parties have a shared ‘Complete Access’ account with Commonwealth Bank which they use for to pay for their daily living expenses including utility bills and grocery. A superannuation account statement was submitted along with a bank statement from Commonwealth Bank confirming that the joint bank account was opened on 25 March 2015.

16. The joint bank account at Commonwealth Bank was submitted to be used to pay for rent, car and daily expenses. The parties state that they share their income from their business and share responsibilities for the household expenses such as grocery, utility bills and council rates.

17. Since the visa applicant’s return to Vietnam in July 2017, the review applicant (sponsor) states that she has combined her parental responsibilities with the roles of chef, owner and restaurant manager.

18. Financial statements and sales reports were submitted for ‘Nhan Ngai Unit Trust’, of which the parties are the beneficiaries, were submitted for the financial years 2017-2018 and 2018-2019.

19. The Tribunal gives regard to these details and gives significant weight to this aspect.

    Household

20. The review applicant in a written statement indicated that the parties shared responsibilities for looking after the review applicant’s (sponsor’s) daughter. It stated that he takes her to school in the morning on the way to work.  The visa applicant takes her to the park after school to play basketball and soccer. He helps her with her homework and she sees him like a father, it is claimed. The parties state that they went to football games and movies as a family.

21. The parties state that they have been cohabiting since May 2012 when the visa applicant moved in to live with the review applicant (sponsor) and her daughter in Albion. The parties state that they moved into their own home together in Sunshine, in February 2013, then moving in April 2016 to a rental premises in Burnley, in order to be closer to their restaurant in Cremorne.

22. A rental agreement and bond lodgement listing both parties as joint tenants of this property was forwarded. With exception of the 12 month period between May 2013 to March 2014 in which the review applicant returned to Vietnam to assist his family to set up a business and his present absence from Australia since July 2017 due to his unresolved immigration matters, the parties claim to have cohabited as a couple since beginning their relationship. The written evidence supports this claim.

23. The review applicant (sponsor) claimed to be in charge of the cooking and the visa applicant would do the cleaning and vacuuming, and assist with laundry and other chores.

24. The visa applicant is allergic to seafood and does not eat fatty meat. These are plausible descriptions and I find them to be the case.

25. The Tribunal is satisfied with the level of detail and consistency in these explanations and gives this aspect weight.

    Social

26. The parties state that they first met in December 2010 in the workplace, and share many mutual friends from work. They submit that their relationship is well known and accepted by their friends, in particular, their friends who also worked at the café where they met as well as the staff members who currently work in their restaurant.

27. The visa applicant in his statutory declaration stated :

    “Tra and I have many mutual friends together, particularly as we work together at Centrico Café and we are now operating a business together. In the spare time we have, we like to catch up with our friends for dinner and to go to watch a game of football. Our two best friends are Son Le Thai and Hai Dang.”

28. Photographs were submitted of the parties showing the social events they attended together throughout the course of their relationship

29. A mutual friend declarant, Duy Hai Dang, stated:

    “Being close to Duy, I have witnessed Duy and Tra’s long story of relationship which grew from being good friends to deeply falling in love. Their love began in 2012 after Tra’s first marriage broke down. It was an extremely difficult time for Tra and Duy was there to give great supports and helped her to get through and overcome her painful past. After four years being in love, the couple decided to build up a happy family with together. I had a honour to be one of the witnesses at their wedding. I, along with all other friends were very happy for them as they have finally had the happiness they well deserved. I am very happy to see that Duy and Tra are finally husband and wife and I could not be happier for them.”

30. There is a similar corroborative account of the inception, development and recognition of the relationship from another mutual friend. There is a mention of people looking forward to a traditional wedding in Vietnam in due course.

31. These declarations are recent documents, and I give them significant weight.

    Commitment

32. The parties married on 23 March 2016. A marriage certificate was submitted to the Tribunal. The wedding reception was a small – a dinner at a restaurant in West Footscray which was attended by close family and friends, the parties submit.

33. The review applicant (sponsor) has made a written statement that she is happy with her family life and that the parties share everything in life including work, home, hobbies and future goals. She stated that the parties responsibilities for looking after the review applicant’s daughter.

34. The review applicant (sponsor) was baptised into the Catholic faith in October 2018. There is photographic evidence showing this and a detailed letter from a nun who guided her in the Catholic faith, and who believes her faith and relationship be genuine. From this detailed evidence I find that the review applicant (sponsor) wanted to be able to share the same faith as her husband.

35. The parties state that they plan to purchase their first home together and have more children.

36. The Tribunal accepts that the parties have a long standing married relationship of some four years. I accept the parties’ evidence that they met at work in 2010, that and that they formed a relationship in 2012 after the review applicant’s (sponsor’s) first marriage broke down.

37. The Tribunal finds that the parties care for the review applicant’s (sponsor’) child together. The relationship is seen as a long term one.  They have described in detail there plans to have another child and the review applicant’s (sponsor’s) formal acceptance of the visa applicant’s faith is also indicative of long-term commitment.

38. I give this factor significant weight.

    Overall assessment

39. Significant written and photographic evidence has been submitted to support the genuineness of the spousal relationship.  The Tribunal is satisfied as to genuineness and has no reason to conclude that there have been any gaps in the relationship or that the relationship is not to the exclusion of all others.

40. The Tribunal has not sighted information to indicate that the department believes the relationship between the parties to be bogus or falsified. The delegate’s decision was based instead on a finding that the relationship was not shown on the evidence submitted. There was an earlier claimed decision on an 820 subclass visa submitted by the parties, which was unsuccessful and not appealed for reasons not entirely clear, but possibly including bad migration advice. It is not apparent that any earlier departmental refusal was for reason of lack of bona fides either. 

41. The additional information submitted to the Tribunal enables it to make its finding in favour of the applicant.

42. The following extensive documentation was submitted and assists to this end:

    ·Undated Statement of Mr Duy Manh Nguyen (visa applicant);

    ·Undated Statement of Ms Tra Phuong Thi Nguyen (review applicant (sponsor));

    ·Support letter from Thu Nguyen;

    ·Statutory Declaration of Siau Yen Lee declared on 10 October 2019;

    ·Photographs from review applicant’s (sponsor’s) baptism in October 2018;

    ·Travel itineraries for review applicant (sponsor) and daughter to visit visa applicant  in Vietnam;

    ·Facebook Messenger chat between parties;

    ·Facebook Messenger chat between parties;

    ·Various photographs of parties and review applicant’s (sponsor’s) daughter during their trips to visit visa applicant in Vietnam;

    ·Various photographs of review applicant’s (sponsor’s)  most recent trip to visit visa applicant in Vietnam in September 2019;

    ·Financial report for Nhan Ngai Unit Trust for financial year ended 30 June 2017;

    ·Financial report for Nhan Ngai Unit Trust for financial year ended 30 June 2018;

    ·Financial report for Nhan Ngai Unit Trust for financial year ended 30 June 2019;

    ·Duy Vietnamese Police Clearance Certificate issued 2 August 2018;

    ·Duy Australian Federal Police Clearance Certificate dated 25 July 2018;

    ·Recent bank statement from parties’ joint bank account in Australia;

    ·Letter from Richmond Family Medical Clinic dated 6 May 2019;

    ·Referral letter from Charles Street Clinic to Richard Family Medical Clinic dated 2 July 2019;

    ·Host Plus Superannuation Statement for review applicant (sponsor) dated 1 November 2019;

    ·Statutory Declaration of Ba Dang declared on 11 November 2019;

    ·Statutory Declaration of Hai Dang declared on 14 November 2019; and

    ·Statutory Declaration of Le Thai Son declared on 18 November 2019.

43. 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.

44. Therefore the visa applicant meets cl.309.211 and cl.309.221.

45. 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

46. 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 of Schedule 2 to the Regulations

    ·cl.309.221 of Schedule 2 to the Regulations

    Justin Meyer
    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).