Nguyen (Migration)

[2024] AATA 559

Nguyen (Migration) [2024] AATA 559 (20 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Van Chinh Nguyen

REPRESENTATIVE:  Mrs Maria Kiew Oanh Do (MARN: 0955639)

CASE NUMBER:  1917332

HOME AFFAIRS REFERENCE(S):          BCC2018/1094199

MEMBER:Wan Shum

DATE:20 March 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl 820.211(2)(a) of Schedule 2 to the Regulations

·cl 820.221 of Schedule 2 to the Regulations

Statement made on 20 March 2024 at 11:39am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – review application noted incorrect visa subclass – joint financial commitments – joint international travel – social recognition the relationship – emotional support – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.15

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 Home Affairs to refuse to grant a Partner (Temporary) (Class UK) visa to the applicant under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant made a combined application for the Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa on 7 March 2018 based on his claimed relationship with Ms Thi Thuy Hang Nguyen. At that time, Class UK contained Subclass 820 (Partner) and Class BS contained Subclass 801 (Partner).

3. On 20 June 2019, the delegate refused to grant the Subclass 820 visa as the delegate was not satisfied that the applicant was the spouse or de facto partner of the sponsor, as defined under the Act. The Subclass 801 visa was also refused.

4. The applicant applied for review and was represented at the time by a representative other than that named on the front page of this decision record. The application form was completed referring only to the decision made in respect of the Subclass 801 visa and was accompanied by a full copy of the decision of the delegate among other documents. An issue therefore arises as to whether the applicant is only seeking review of the decision to refuse the Subclass 801 visa. However, as the Subclass 801 visa cannot be granted unless the applicant holds a Subclass 820 visa, the Tribunal has proceeded to review the decision to refuse to grant the Subclass 820 visa in spite of the error on the application form by reference to the delegate’s decision.

5. The applicant appeared before the Tribunal on 1 February 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Thi Thuy Hang Nguyen, the sponsor, and Ms Thi La Hoang, the sponsor’s mother. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The representative attended the Tribunal hearing.

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

   BACKGROUND

7. The applicant is a Vietnamese national born in September 1983. He was sponsored by Ms Thi Thuy Hang Nguyen (the sponsor) for a Prospective spouse visa in 2014, which requires amongst other things, an assessment of whether the person intends to marry an Australian citizen, permanent resident or eligible New Zealand citizen. The Department received an allegation that the relationship is not genuine and is contrived to facilitate the applicant’s migration to Australia and that the sponsor had been paid money by the visa applicant to sponsor his visa application and that she herself paid a man to marry her and sponsor her to remain in Australia and the visa was initially refused by a delegate of the Minister. On review, the Tribunal, differently constituted, concluded that the applicant intended to marry an Australian; that the parties have met and are known to each other personally; that the parties genuinely intend to marry and intend to do so during the visa period; and that the parties genuinely intend to live together as spouses. The Subclass 300 visa was eventually granted in January 2018 and the applicant first entered Australia in February 2018.

8. The sponsor was born in Vietnam in October 1978 and came to Australia in 1997 as the holder of a student visa. After being granted further student visas, in October 2002, she was granted a Subclass 820 visa on the basis of her marriage to Mr Hong Kang Sam in July 2001. She was subsequently granted a Subclass 801 visa in September 2003, and her marriage to Mr Sam ended in divorce on July 2005. The sponsor became an Australian citizen in February 2006. She then sponsored Mr The Anh Nguyen who she married in February 2007. He was granted a Partner visa in 2009. They had a child together, Nathan Nguyen born in 2006. That marriage ended in divorce in July 2012.

9. The applicant made a combined application for the Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa on 7 March 2018.

10. In order to be granted the Partner (Temporary) (Class UK) visa, the applicant must satisfy the applicable visa criteria set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations) which includes cl 820.211. In this matter, the delegate found that the applicant did not satisfy clauses 820.211(2)(a) and 820.221 of Schedule 2 to the Regulations.

11. These criteria relevantly require that the applicant is the spouse or de facto partner of the sponsor, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen at time of application and at time of decision respectively. In the present case, the applicant claims to be the spouse of Ms Thi Thuy Hang Nguyen, who is an Australian citizen by grant. For the purposes of this application, she is the sponsor.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Whether the parties are in a spouse or de facto relationship

12. ‘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 sponsor’s 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.

    Are the parties validly married?

13. Only parties that are validly married may be considered to meet the requirements of a married relationship. The parties provided a copy of a marriage certificate which reflects that the marriage took place on 2 March 2018 and was registered with the NSW Registry of Births, Deaths and Marriages on 21 March 2018. Although the submissions refer to only one prior marriage of the sponsor, as noted above, the sponsor has been married two times previously with each marriage ending in divorce. There is no evidence that the applicant has previously been married, although there was an allegation in 2021 that the applicant was in a relationship with another person named Ms Nhu Mai Pham which is considered below. There is no evidence before the Tribunal that the marriage with the sponsor was not a valid marriage.

14. Given this, 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).

    Are the other requirements for a spouse relationship met?

15. In respect of the allegations that their marriage is contrived, an officer of the Department issued a non-disclosure certificate pursuant to s 376 of the Act in respect of the folio. However, given the nature of the allegation, aspects of the information contained in the allegation were raised at the hearing. Neither the applicant nor the sponsor was aware of the allegation and denied that there was any truth behind the claim that he had paid money to someone else to stay in Australia using a fake relationship. The applicant denied having ever lived in Bankstown or that he had a child with Ms Nhu Mai Pham, who was alleged to be his girlfriend. He explained that he was previously employed in the position of a driver for Ms Pham’s food business in around 2020 to 2021, stating that he would go to her house to pick up deliveries, and gave evidence that there were two locations that he would attend, one in Chester Hill and one in Bankstown. The Tribunal noted that there were over 60 transactions appearing in their joint bank account statements which had the following wording appearing in the descriptions: “Nhu Pham… from Mai”. The majority of these were credits of $351.12 which usually appeared on a weekly basis, such that it appeared to reflect wage payments. There were other transactions which were outside this pattern, specifically a credit of $1,100 on 11 May 2020, two credits on 14 May 2020 for $2,900 and $100 and a further credit for $922.50 in August 2020 with the description “rose apple bill”. The Tribunal queried the nature of these transactions and the applicant said that sometimes he had to make payments to suppliers and was later reimbursed by Ms Pham.

16. Following the hearing, the Tribunal wrote to the applicant to invite his comments on the validity of the non-disclosure certificate. In response to the invitation, the representative submitted that the certificate was invalid and requested that the Tribunal exercise its discretion to disclose to the applicant all the information covered by the certificate and supporting evidence relevant to the allegation. In the alternative, it was requested that the Tribunal not take into account the information and allegations made against the applicant as “there are many people with ulterior motives against the applicant who may have made false allegations against him in an attempt to have her [sic] removed from Australia”.

17. The submissions regarding the allegation were that “[the applicant] strongly rejects the allegations and denies that he is in a relationship with any other individual and is solely committed to his current spouse, the sponsor”. The applicant’s evidence during the hearing was summarised in the submissions, essentially restating that he visited Ms Pham’s residence to receive work orders and remit payments collected directly from customers and he occasionally used his own funds to settle supplier payments at designated delivery and pick up points, later being reimbursed by Ms Pham by either cash or bank transfers. The submissions refer to the applicant having concluded his employment with Ms Pham which it was submitted was a considerable time ago and added that he has since severed all ties with her. It was submitted that the applicant holds the view that the allegations were prompted by either jealously or resentment stemming from his decision to resign from working for Ms Pham and that he genuinely struggles to comprehend the basis for these accusations.

18. The Tribunal does not consider the time which has lapsed since he ceased his employment with Ms Pham is correctly described as a considerable time ago and, in any case, this would not of itself preclude the existence of a relationship with her at that time. Notwithstanding this however, the Tribunal has been unable to locate any evidence which suggests that the information outlined in the allegation is reliable. In terms of the transactions in their joint account which appear on the bank statements, these reflect that all were for money transferred into their joint account and, noting that Ms Pham’s details and ABN appears as a payer on the applicant’s Income Tax Returns for 1 July 2020 to 30 June 2021, the Tribunal accepts that the transactions were related to employment and that his association with Ms Pham was as her employee.

19. In terms of each matter in reg 1.15A(3)(a), (b), (c) and (d), and any other circumstances of the relationship under reg 1.15A(2), the Tribunal has considered the evidence as set out below.

    Financial aspects of the relationship –

20. The parties claim that they have a joint bank account into which both their wages are transferred into, and they jointly share expenses, paying for household expenses, bills and transport from this account. Both parties gave evidence that the sponsor owns the home in which they live and had paid off the home loan she took out with RAMS with the applicant’s help. The statements for the home loan and offset account with RAMS were provided after the hearing, with the loan and account held in the sponsor’s name only and reflect that the mortgage was paid in full by 17 February 2022. The evidence was that the home was purchased by the sponsor prior to their marriage. The statement for the offset account linked to the home loan reflects payments described as “salary [sponsor’s name]” and regular Oz Homestay payments made from two individuals, Van Thuyet Le and Thanh Hai Duong, but no transaction descriptions with the sponsor’s name appearing. The parties each gave evidence separately at the hearing that the applicant had contributed to the payment of the mortgage with his second job, working on weekends at a fish shop for which he was paid in cash.

21. While it has not been possible to identify any transactions on the RAMS loan and offset account statements to determine whether the applicant did contribute jointly to the mortgage payments of the sponsor’s home, the Tribunal is prepared to accept their oral evidence on this point which was consistent. The Tribunal further considers that the bank account statements given on review indicate that they have been utilising an account jointly and that while it appeared that only the applicant’s salary was paid into that account in late 2018 to mid-2019, there was some evidence of transfers into that account from the sponsor’s Commonwealth Bank and RAMS accounts from February 2019 onwards. Furthermore, noting that prior to their marriage the sponsor’s financial circumstances included payment of a home loan, the Tribunal considers that the evidence indicates that the parties are in a married relationship as claimed.

    Nature of the household –

22. The parties claim that they have lived together in Strathfield South, a suburb in Sydney, Australia in a 6-bedroom house owned by the sponsor since the applicant’s arrival to Australia. There are no children of the relationship, but the sponsor has a child from her second marriage who will be turning 18 later this year. The applicant displayed a reasonable knowledge of the sponsor’s son’s circumstances at the hearing, although said that his stepson refers to him as ‘uncle’. There are photographs of the applicant, sponsor and the sponsor’s son during their 2023 trip to Bali. The sponsor’s mother also lives with them and gave evidence at the hearing in support of their relationship being genuine.

23. In respect of the requirement that they live together or do not live separately and apart on a permanent basis, the evidence reflects that the applicant has consistently used the address in Strathfield South since his arrival in Sydney, Australia and provided this address to both private and government institutions.

    Social aspects of the relationship –

24. There are many photographs of the parties together and with others in Australia from 2018 till now as well as of the parties on a trip to Bali with the sponsor’s child in 2023. They provided several Form 888s from their friends and the sponsor’s mother on review, in addition to those given in 2019. The sponsor’s mother also gave evidence at the hearing in support of their relationship.

25. The opinions of others confirm that the parties are in a genuine marital relationship. The Tribunal considers that there is evidence that the parties have represented themselves to other people as being married to each other.

    Nature of persons' commitment to each other –

26. The parties claim that their families know each other in Vietnam which is how they came to have met and married. They have been married for around 6 years now and claim to have been living together ever since the applicant arrived in Sydney in early 2018.

27. They gave similar evidence about their future plans and their desire to start a family. The sponsor referred to having had health issues which were resolved last year, although the evidence provided after the hearing does not directly support this claim, with the last medical report dated September 2021. Nevertheless, the Tribunal’s view was their evidence reflected that they are in a loving relationship and support each other emotionally.

28. Other circumstances – both parties gave their evidence in a frank and open manner at the hearing. In respect of a further allegation received after the Subclass 820 visa was refused, the Tribunal considers that there is insufficient reliable evidence regarding the matters raised in the allegations.

29. The Tribunal has had the benefit of additional information on review and evidence at the hearing and accepts that the parties are committed to each other and they see the relationship as long-term. The Tribunal finds that they have a mutual commitment to shared life as husband and wife to the exclusion of others; are in a genuine and continuing relationship; and that while they live in different countries, they do not live separately and apart on a permanent basis. The subsequent information tends to indicate that the relationship was genuine at the time when the application was made.

30. Given these findings the Tribunal is satisfied that the requirements of s 5F(2) are met both at the time of application and at the time of this decision. Therefore, the applicant meets cl 820.211(2)(a) and cl 820.221. The Tribunal

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 (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

    ·cl 820.211(2)(a) of Schedule 2 to the Regulations

    ·cl 820.221 of Schedule 2 to the Regulations

    Wan Shum
    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).