Nguyen (Migration)

[2024] AATA 568

Nguyen (Migration) [2024] AATA 568 (14 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Van Giang Nguyen

VISA APPLICANT:  Ms Thi Ty Le

REPRESENTATIVE:  Ms Myyen Tran

CASE NUMBER:  1910032

DIBP REFERENCE(S):  BCC2018/3955895

MEMBER:Wan Shum

DATE:14 March 2024

PLACE OF DECISION:  Sydney

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 14 March 2024 at 1:19pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – financial aspects – money transfers – nature of the household – social aspects – non-declaration to public or private institutions in Australia – nature of the commitment – 19-year age gap – decision under review remitted

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

CASES
He v MIBP [2017] FCAFC 206          

STATEMENT OF REASONS AND DECISION

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 March 2019 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 25 June 2018 on the basis of her claimed relationship with the review applicant. At that time, Class UF contained 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). Relevantly in this case, one of the primary criteria that must be satisfied by the visa applicant is that she is the spouse or de facto partner of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

3. The delegate did not consider that the evidence and information provided was sufficient to demonstrate that the visa applicant is the spouse, as defined under s 5F of the Act, of such a person and refused to grant the visa.

4. The review applicant (the sponsor) sought review of that decision and was represented in relation to the review. The review applicant appeared before the Tribunal on 15 January 2024 to give evidence and present arguments with the assistance of an interpreter in the Vietnamese and English languages. The Tribunal also received oral evidence from the visa applicant by phone, also with the assistance of the interpreter. The representative was present throughout.

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

   BACKGROUND

6. The visa applicant is a Vietnamese national, born in February 1993. She applied for the visa on the basis of her claimed relationship with the sponsor, who was born in Vietnam in June 1974 and now lives in Sydney. Various documents were submitted with the application and subsequently in support of the existence of a genuine relationship.

7. The parties claim that their first contact was by telephone - the sponsor had obtained the visa applicant’s phone number from her sister who lives in Sydney in January 2016. They claim that they first met in Vietnam in March 2016 and spent a couple of days together on that occasion.

8. The parties claim that after returning to Australia, they maintained contact over the phone and he later returned to Vietnam in February 2017 which is when it was claimed that he was introduced to her family. He then returned to Australia on 1 March 2017 and claims that he proposed to her on his birthday on 7 June 2017. The next time he travelled to Vietnam was on 19 February 2018 and their marriage took place on 27 February 2018. They claim to have travelled to different cities in Vietnam together as a couple after their marriage with the sponsor returning to Australia on 14 March 2018. The visa application was lodged in June 2018.

9. Following an interview with the visa applicant, the delegate refused the application on 28 March 2019 on the basis that the visa applicant did not satisfy cl 309.211(2).

10. Clause 309.211(2) requires that, at the time the visa application was made, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. With limited exceptions that only apply in relation to a decision to grant or not grant a Subclass 309 visa made on or after 20 August 2022, the visa applicant must continue to be the spouse or de facto partner at the time of the Tribunal’s decision: cl 309.221. In the present case the visa applicant claims to be the spouse of the sponsor who is an Australian citizen.

11. ‘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            reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Whether the parties are in a spouse or de facto relationship

    Are the parties validly married?

12. Only parties that are validly married may be considered to meet the requirements of a married relationship. As evidence of their marriage, a marriage certificate with translation which states that the marriage between them was registered on 9 March 2018 was provided to the Department. Neither party has previously been married, but the sponsor was previously in a de facto relationship with Cao Yan Le.

13. 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?

14. The Tribunal has considered each matter in reg 1.15A(3)(a), (b), (c) and (d), and any other circumstances of the relationship under reg 1.15A(2), in forming a view as to whether the applicant and sponsor meet the definition of spouses as set out below.

    Financial aspects of the relationship –

15. There is no evidence that they have joint assets or joint liabilities.

16. In the delegate’s decision record, reference is made to several money transfer receipts which were provided with the visa application which show that a total of approximately AUD 6,100 and VND 54,820,300 was sent to the visa applicant from the sponsor between September 2017 to January 2019. Three money transfer receipts were also provided for a total of approximately VND 33,396,000 which were sent to the visa applicant from the sponsor but were undated.

17. Prior to the hearing, the Tribunal received evidence of money transfers which were made through Trinh Money Transfer & Services located in Cabramatta between July 2019, after the visa was refused, and July 2022. From October 2022 to October 2023, the transfers were made through Hai Ha Money Transfer. The remittance receipts from July 2019 to July 2022 reflect receipt of these transfers by the visa applicant and screenshots from a mobile phone device from October 2022 to October 2023 are untranslated but appear to reflect the receipt of these amounts into her bank account. The Tribunal has examined the evidence which reflects that money is transferred in the sponsor’s name to the visa applicant with amounts varying between AUD 200 to 700 monthly between July 2019 to November 2000, then from January 2021 to October 2021, between $200 to $700 was transferred at a time, but not every month, with a total of $2,600 for that year. From January 2022 to November 2022, there were 7 remittances totalling $3,100 for the entire year and from March 2023 until October 2023, a total of $3,300 was remitted to the visa applicant. At the hearing, both parties said that the sponsor remitted between $200 to $400 to the visa applicant every month. In the visa applicant’s statement provided on review, she claimed that the money was for her living expenses and also for her English language study. When the sponsor was asked what the transfers were for during the hearing, he said not for anything in particular, she is my wife and then added for her studies.

18. The sponsor claims to have two sources of income, from part-time work at a supermarket where he said he earns $696.90 for 30 hours per fortnight as a general hand, cleaning and packing and stock and he has also been in receipt of Centrelink benefits since 2012. The most recent bank statements of the sponsor reflect that he is receiving Jobseeker payments of around $468.60 per fortnight but does not reflect any salary payments. The sponsor said that his wages from his job is paid in cash and explained that he used to work full-time but then got dismissed and has been working part time since 2012 until now.

19. The visa applicant claims to live and work in Danang, a city in central Vietnam and earns 6 million Vietnamese Dong per month as a nail artist. Both parties gave consistent evidence about each other’s jobs and incomes.

20. There is no evidence of joint ownership of assets or joint liabilities; nor are there any legal obligations owed to the other party. In respect of sharing of day-to-day household expenses, the typical evidence of household expenses in the form of bills or receipts has not been provided but the Tribunal notes that they live in different countries and have spent only a limited period of time together.

21. While the evidence of joint finances is limited to money transfers from the sponsor to the visa applicant, this has continued for several years and, given they have not lived together, the Tribunal considers that the transfers of money from the sponsor to the visa applicant are reflective of a married relationship where the parties live apart in different countries.

    Nature of the household -

22. As noted above, the parties do not live together as the visa applicant lives in Da Nang city in Vietnam where she is employed, while the sponsor lives in a house in Canley Heights, a suburb of Sydney, Australia which he said is the home of his brother’s wife.

23. The sponsor’s claim is that every time he returns to Vietnam, he spends time with the visa applicant as a married couple. The visa applicant gave evidence that they travel together in Vietnam when the sponsor visits and that they stay in hotels together and, even while in Da Nang, they book a hotel and stay there together as she is not permitted to have visitors (which the Tribunal understands extends to overnight guests) where she lives. In terms of the total period of time spent together in person, prior to their marriage in February 2018, they had spent a total of 5 days together on two occasions when the sponsor had returned to Vietnam. Shortly before the visa was refused, in February 2019 the sponsor had again travelled to Vietnam. Since then, the sponsor claims to have returned to Vietnam a further two times and the parties claim that they spent time together as a couple travelling to various tourist spots in Vietnam. Departmental records reflect that he departed Australia on 30 January 2020 and remained offshore until 19 February 2020, and the most recent visit was from 5 August 2022 to 28 August 2022.

24. According to the sponsor’s movement records, he has been outside Australia for approximately 4 months in total since they first met which is consistent with the statement regarding their relationship. The photographs reflect that they have spent time together in what appear to be parks and tourist spots in different locations in Vietnam and having meals together as well as cooking together in a domestic kitchen. In respect of children, there are no children of the relationship and the sponsor has two children from his previous relationship. The visa applicant gave evidence that she has only met the sponsor’s children over video calls. The Tribunal notes that the sponsor’s children are now adults, with his eldest son being a year younger than the visa applicant and they are not claiming to have any joint responsibility for care and support of children. They have both expressed the desire to start a family of their own.

25. Based on their evidence, they could not have spent more than a total of around 2 and a half months in person together since they first met which explains the lack of evidence of a household. Nevertheless, given that they live in different countries, the Tribunal does not consider that this aspect of itself undermines their claims of being a married couple.

    Social aspects of the relationship –

26. The parties claim to have represented themselves to other people as being married to each other, with the visa applicant giving evidence at the hearing that their wedding was attended by around 300 people. There are some photographs of their wedding day. When the application was made, there were few Form 888s from the sister of the visa applicant, brother-in-law and the sponsor’s eldest son who have attested to being aware of the visa applicant and believing that they are in a genuine relationship. The sister and brother-in-law had attended the wedding and seen them together but the son did not attend, stating that this was because of his work. On review, additional Form 888s have been provided from the sponsor’s father and sister both stating that they believe the relationship is genuine and continuing. While the visa applicant had not met the sponsor’s parents or his siblings until after their marriage, the sponsor’s father refers in his Form 888 to having met the visa applicant on three occasions, in February 2019, August 2022 and May 2023 and photographs of the visa applicant with the sponsor’s family at the airport and at the sponsor’s mother’s grave, and dining together were provided. Both parties displayed a good knowledge of each other’s family at the hearing.

27. The sponsor gave evidence that they enjoy travelling together, both enjoy their food and shopping. There are numerous photographs of the parties visiting different parts of Vietnam as well as with their relatives and friends. There are also copies of train tickets, boarding passes and travel bookings for both parties evidencing travel together.

28. It does not appear to the Tribunal that the sponsor had declared that he was married to any public or private institutions in Australia. The information before the Tribunal reflects that the sponsor had not informed Centrelink of his marriage and did not indicate that he had a spouse on his income tax return. When this was put to the sponsor, he made a statutory declaration after the hearing stating that he had attended the Centrelink office after his marriage to the visa applicant but was informed that he did not need to notify Centrelink of his spouse until she arrived in Australia. He advised that after receiving the Tribunal’s letter, he has since completed the necessary form and provided it to Centrelink which confirms that he had not declared that he had a spouse at the time of the marriage. In respect of his tax return, the accountant who he engaged to prepare the tax return has confirmed that the failure to declare a spouse and error in the bank account details entered was made on their end and attached an amended tax return with the relevant details.

29. So, while the evidence reflects that their married relationship is recognised by their family members and other friends and acquaintances, the sponsor did not formally declare his marriage to the abovementioned government agencies until recently.

    Nature of persons' commitment to each other –

30. Based on a joint statement regarding their relationship, they had spent 5 days in total together from 10 to 12 March 2016 and then on 21 and 22 February 2017 prior to their engagement on the sponsor’s birthday on 7 June 2017 when it is claimed that he proposed over [Microsoft] Messenger. The sponsor returned to Vietnam on 19 February 2018, and they married on 27 February 2018 which means that the parties have been married for just over 6 years now. In that time, they have spent a total of around 2 and a half months together on separate occasions when the sponsor has travelled to Vietnam. The visa applicant has never been to Australia. While the time spent in person is relatively short, there is evidence that they have maintained regular contact via messaging, phone and video calls on their mobile phone devices, although the screenshots of the messages are largely untranslated. The screenshots of video calls appear to have been taken from the visa applicant’s device, with the image of the sponsor appearing in the frame while the visa applicant’s image appears in a smaller frame in the corner. These screenshots indicate that numerous calls have been made between the visa applicant and sponsor since 2018.

31. The parties gave evidence that they love each other and wish to live together in Sydney as a married couple and start a family together.

32. Other circumstances – there is a 19-year age gap between the sponsor and visa applicant and they were purportedly introduced to each other by the visa applicant’s sister who it was claimed also lived in the same rental property as the sponsor from 2012 to 2016 at McBurney Road in Cabramatta. They both indicated that the age difference is not of concern to either of them and the visa applicant in her statement sets out that she “used to admire [her] brother-in-law's love for [her] sister, the care of a truly mature person. So since then, [she] have planted in [her] mind the thought of looking for a mature husband.” The Tribunal notes that the age gap between her sister and brother-in-law is 30 years.

33. The answers given at the Departmental interview by the visa applicant reflected that she was not aware that the sponsor’s son and sister had travelled to Vietnam, and she repeatedly said she did not care when asked to address the concerns raised as to why she did not know about their visits and why she did not meet them. When asked about this at the hearing, she said she was nervous. In respect of the sponsor’s son, the sponsor said his son had travelled with his girlfriend and he did not know about the visit and the visa applicant added that she understood as he is an adult and added that he was living with his mother at the time. The Tribunal considers this to be an acceptable explanation in these circumstances.

34. In respect of the requirement that they live together or do not live separately and apart on a permanent basis, the parties live in different countries, with the visa applicant in Vietnam and the sponsor living in Sydney, Australia. They generally stay in hotels together whenever the sponsor returns to Vietnam. The Tribunal accepts that they intend to live together as a couple when the visa applicant has a visa which would allow her to travel to Australia to join the sponsor and the Tribunal considers that the evidence supports a conclusion that, while they live in different countries, they do not live separately and apart on a permanent basis.

35. Having considered all of the circumstances and evidence provided, the Tribunals finds that they have a mutual commitment to shared life to the exclusion of others; are in a genuine and continuing relationship; and that they do not live separately and apart on a permanent basis. The information at the time of the visa application reflected that the parties had not spent much time together before marrying and had spent limited time with each other’s family and relatives which, combined with the visa applicant’s interview responses, led to the visa refusal. However, the information presented on review reflects that they have maintained a marital relationship which is recognised and supported by their family members which supports the view that the relationship was genuine when the application was made.

1. 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.

2. Therefore, the visa applicant meets cl 309.211 and cl 309.221.

3. 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

4. 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

   Wan Shum
   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).