Nguyen (Migration) - [2024] AATA 686

Nguyen (Migration) [2024] AATA 686 (23 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Van Hoa Nguyen
VISA APPLICANTS:  Ms Thi Hong Dung Nguyen
Mr Nguyen Bao Phong Lam
Miss Nguyen Bao Ngoc Lam
REPRESENTATIVE:  Mr Thang Manh Nguyen (MARN: 1687850)
CASE NUMBER:  2100742
DIBP REFERENCE(S):  BCC2019/6444905
MEMBER:Anne Grant
DATE:23 February 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with directions that:
The first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cls 309.211, 309.212 and 309.213 of Schedule 2 to the Regulations; and
·cl 309.221 of Schedule 2 to the Regulations; and
·cl 309.222 of Schedule 2 to the Regulations.

The second and third named visa applicants meet the following criteria for a Subclass 309 (Partner)(Provisional) visa:
·cl 309.321 of Schedule 2 to the Regulations.

Statement made on 23 February 2024 at 12:17pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – financial aspects – nature of the household – social aspects – nature of the parties’ commitment – sponsorship limitation – two prior approved sponsorships – compelling circumstances – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), rr 1.15A, 1.20J; Schedule 2, cls 309.211, 309.221, 309.222, 309.321
CASES
Babicci v MIMIA [2004] FCA 1645
Babicci v MIMIA [2005] FCAFC 77
He v MIBP [2017] FCAFC 206
Paduano v Minister for Immigration & Multicultural and Ethnic Affairs [2005] FCA 211
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 November 2020 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (the Act).
The first named visa applicant (the primary applicant) applied for the visa on 3 December 2019 on the basis of their relationship with their 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 who are applicants for the visa (the second and third named applicants in this case) need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the primary applicant did not satisfy cl 309.211 because they were not satisfied that she was the spouse of the sponsor at the time of application. In essence, the delegate found that the parties were not in a genuine and continuing married relationship at the time of application.
The review applicant appeared before the Tribunal on 2 February 2024 to give evidence and present arguments by video using the Microsoft Teams application.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nguyen (Migration)

Details

AGLC: Nguyen (Migration) [2024] AATA 686
Case: [2024] AATA 686
Decision Date: 23 February 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an appeal by a visa applicant against a decision concerning a Partner (Provisional) (Class UF) visa, subclass 309. The primary issue was whether the applicant and the sponsor were spouses within the meaning of the *Migration Act 1958* (Cth) and its associated regulations, and whether the sponsor met the requirements for sponsoring a third partner visa.

The Tribunal was required to determine if the parties were in a married relationship, which necessitates a valid marriage, a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and cohabitation or not living separately on a permanent basis, as defined by section 5F of the Act. Additionally, the Tribunal had to consider regulation 1.20J of the *Migration Regulations 1994*, which imposes limitations on the number of partner sponsorships a person can undertake and requires a minimum period to elapse between sponsorships, unless compelling circumstances exist.

The Tribunal found that the primary applicant and sponsor had provided extensive evidence supporting their genuine and continuing relationship, including oral testimony and documentary evidence. It was satisfied that they shared a mutual commitment to a shared life to the exclusion of others, that their relationship was genuine and continuing, and that they did not live separately on a permanent basis, meeting the criteria under section 5F(2) at both the time of application and the time of the decision. However, the Tribunal noted that the sponsor had previously sponsored two other partners, triggering the limitations under regulation 1.20J. While the delegate had not been satisfied with the genuineness of the relationship, the Tribunal considered the sponsorship limitation issue to be before it.

The Tribunal concluded that the matter should be remitted for reconsideration. This was because, although the Tribunal was satisfied as to the genuineness of the relationship, the issue of compelling circumstances for the sponsor to exceed the sponsorship limit under regulation 1.20J had not been fully determined.

Orders

Orders of the court

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Background

Background to the litigation

‘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.History and background of the relationship According to their evidence and their application, the parties were introduced by the primary applicant’s Aunt who is residing in Australia and is a friend of the sponsor. They started an online relationship in February 2018 and then started to call each other. The sponsor proposed in April 2018, but the primary applicant said that she would give him an answer when he came to Vietnam. The sponsor travelled to Vietnam on 14 June 2018 and again proposed to the primary applicant who accepted the proposal. The sponsor then returned to Australia. The sponsor travelled back to Vietnam on 9 June 2019 and their wedding was registered in on 26 June 2019. The sponsor returned to Australia on 9 August 2019. At hearing, the primary applicant gave evidence that she didn’t accept the sponsor’s proposal until she had met him in person and was sure that they had a connection. As soon as she met him, she knew that she would marry him. The sponsor observed that they didn’t marry straight away because he had to get his divorce finalised first. He and his former wife had been living separately for some time and so despite the delegate’s concerns about the reasons for his divorce and the rapid onset of this relationship, his second marriage was already over before he was even introduced to the primary applicant. His second wife cheated on him, and had another man. They had no children. His divorce became final on 15 December 2018. In answer to an observation that the marriage event was very quiet, unlike cultural and community events commonly observed for weddings in Vietnamese society, the parties both agreed with this and the primary applicant said that this was not their first marriage and they did not feel the need to hold a big wedding or conform to this community tradition. What was important to them was that they committed to each other in front of family. The sponsor said that when the visa applicant is able to be with him in Australia, they will have a party so that his friends can meet his wife properly, and also to celebrate their marriage and future together. He noted that over the period from 2020 to 2022, he could not travel to be with his wife in Vietnam due to the global pandemic and movement restrictions.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. CONSIDERATION OF CLAIMS AND EVIDENCE The primary issue in the present case is whether the visa applicant and sponsor were spouses at the time of application and if so, whether they are spouses at the time of making this decision. In addition, if satisfied that the parties were spouses at the time of application and the time of decision, as noted by the Department in the process of the application, this is the third spouse sponsorship lodged by the sponsor and so regulation 1.20J must be considered. Regulation 1.20J sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship. Under r.1.20J, a sponsor is limited to a total, in a lifetime, of two approved sponsorships or nominations that lead to a grant of a partner visa (or entry permit) or a visa (or entry permit) granted on the basis of the domestic violence provisions. If there has been one previous sponsorship or nomination, or if the sponsor was granted a visa or entry permit as a result of being sponsored, a period of 5 years must have passed since the date of the earlier visa application. These requirements apply unless the Minister, or the Tribunal on review, is satisfied there are compelling circumstances affecting the sponsor: r.1.20J(2). I had the opportunity to take evidence separately from both the primary visa applicant and the sponsor. I found them to be genuine and credible witnesses. In addition, the parties had provided extensive documentary evidence in support of their relationship both to the Department prior to the decision under review, and also to the Tribunal prior to the hearing. I have had regard to that evidence. Where appropriate, I have referred to the oral and documentary evidence and information below in considering each of the aspects of the relationship, but due to the volume of documentary evidence, it will not be particularised in this statement of reasons. Whether the parties are in a spouse or de facto relationship 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 primary applicant claims to be the spouse of the review applicant who is an Australian citizen. ‘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.History and background of the relationship

Decision

Reasons for decision

Consideration of the nature of the parties’ commitment supports a finding that the primary applicant and sponsor have been in a committed relationship since their marriage, continue to be committed to each other, that they draw emotional support from each other and have planned their future together as a married couple and a family with the second and third applicants. Conclusion on spouse relationship Having considered each of the aspects of the relationship, I find that the primary applicant and sponsor share a mutual commitment to a shared life to the exclusion of others, that theirs is a genuine and continuing relationship and that they do not live separately on a permanent basis. I am satisfied that this was the case at the time of application and at the time of making this decision. On the basis of that conclusion, the requirements of s 5F(2) are met at the time the visa application was made and at the time of this decision. Therefore the visa applicant meets cl 309.211 and cl 309.221. There is no suggestion in this case that the primary visa applicant has ever been granted a Subclass 204 (Woman at Risk) visa. The sponsor is not prohibited from being a sponsor by subclause 309.212(2), and cl 309.212 is satisfied. The primary applicant is sponsored by her spouse. Cl 309.213 is satisfied. Are the sponsorship requirements met? At the time of decision, this sponsorship must have been approved and still be in force (cl 309.222.) As noted earlier, approval of sponsorship is subject to limitations contained in reg 1.20J of the Regulations which sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship. In this case, the Departmental file reflects that the sponsor has previously sponsored his first two wives. The issue of limitation of sponsorships was raised with the applicant by a notice under s.59 seeking response to adverse information sent to the applicant on 25 September 2020. However, the issue was not further addressed in the delegate’s decision statement, because the delegate was not satisfied as to the genuine and continuing relationship. Nonetheless, as discussed with the applicants at hearing, I consider that this particular issue is before me, given that it had been raised by the delegate in the process of considering the application. Regulation 1.20J provides as follows: (1AA) This regulation applies in relation to an application for: (b) a Partner (Provisional) (Class UF) visa; or(c) a Prospective Marriage (Temporary) (Class TO) visa; or(e) an Extended Eligibility (Temporary) (Class TK) visa; or(f) a Partner (Temporary) (Class UK) visa. (1) Subject to subregulations (2) and (3), if a person applies for a visa mentioned in subregulation (1AA) as the spouse, de facto partner or prospective spouse of the sponsor, the Minister must not approve the sponsorship of the applicant unless the Minister is satisfied that: (a) not more than 1 other person has been granted a relevant permission as:(i) the spouse, de facto partner or prospective spouse of the sponsor on the basis of a sponsorship or nomination; or(ii) a person who ceased a relationship of a kind mentioned in subparagraph (i) with the sponsor after the person, or another person mentioned in the prescribed criteria for the visa, had suffered family violence committed by the sponsor; and(b) if another person has been granted a relevant permission in the circumstances referred to in paragraph (a) — not less than 5 years has passed since the date of making the application for that relevant permission; and(c) if the sponsor was granted a relevant permission as the spouse, de facto partner or prospective spouse of another person on the basis of a sponsorship or nomination — not less than 5 years has passed since the date of making the application for that relevant permission. (1A) In subregulation (1):relevant permission means:(a) in relation to an application for a visa referred to in subregulation (1AA) made during the period from 1 November 1996 to 30 June 1997 (inclusive) — a visa; and(b) in relation to an application for a visa referred to in subregulation (1AA) made on or after 1 July 1997 — permission (other than a visa or entry permit) granted under the Act to remain indefinitely in Australia, a visa or an entry permit. (2) Despite subregulation (1), the Minister may approve the sponsorship of an applicant for a visa if the Minister is satisfied that there are compelling circumstances affecting the sponsor.

Ratio Decidendi

Legal Principle Established

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