Nguyen (Migration)

[2024] AATA 354

Nguyen (Migration) [2024] AATA 354 (9 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Tony Nguyen

VISA APPLICANTS:  Ms Thi Mang Tran
Mr Phuc Thinh Trinh

REPRESENTATIVE:  Dr Ngo Tung Bao (MARN: 0006620)

CASE NUMBER:  2216048

DIBP REFERENCE(S):  BCC2017/3316776

MEMBER:Justine Clarke

DATE OF ORAL DECISION:  9 February 2024

DATE OF WRITTEN STATEMENT:         19 February 2024

PLACE OF DECISION:  Melbourne

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

·cl 309.211 of Schedule 2 to the Regulations; and

·cl 309.221 of Schedule 2 to the Regulations.

Statement made on 19 February 2024 at 1:02pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – previous refusal on another ground remitted with finding of credibility and commitment – genuine and continuing relationship – validly married – financial, household and social aspects of relationship and nature of commitment – limited finances and cash income and expenditure during COVID pandemic – separate travel due to visa applicant’s visa conditions – spontaneous, consistent and credible evidence and supporting statements – member of family unit child now over 18 – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5F(2), 65

Migration Regulations 1994 (Cth), r 15A(3), Schedule 2, cls 309.211(2), 309.221, 309.321

CASES

He v MIBP [2017] FCAFC 206

MIEA v Pochi (1980) 4 ALD 139

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made on 21 October 2022 by a delegate of the Minister for Home Affairs to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (the Act).

2. On 12 September 2017, the first-named visa applicant (the visa applicant) applied for the visa based on her relationship with her sponsor, the review applicant. The second-named visa applicant was included as a secondary visa applicant. It is claimed that he is the visa applicant’s son from her previous marriage. Both visa applicants are nationals of Vietnam.

3. At the time of application, the sponsor was 57 years of age, the visa applicant was 46 years of age, and the secondary visa applicant was 16 years of age. At the time of this decision, the sponsor is 64 years of age, the visa applicant is 52 years of age, and the secondary visa applicant is 22 years of age.

4. At the time of application for the visas, 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 include cl 309.211 and cl 309.221. The primary criteria must be satisfied by at least one applicant. Other members of the family unit who are applicants for the visa need satisfy only the secondary criteria. The secondary criteria include cl 309.321.

5. The review applicant provided the Tribunal with a copy of the delegate’s refusal decision (the primary decision). The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.211 of Schedule 2 to the Regulations. The delegate assessed the application pursuant to cl 309.211(2) and found that the information and evidence, submitted in support of the application, was not sufficient to demonstrate that, at the time of application on 12 September 2017, the visa applicant satisfied the definition of spouse under s 5F of the Act.

6. The delegate also refused to grant the second-named applicant (the secondary applicant) the visa on the basis that he did not meet the primary criterion cl 309.211. Unusually, the delegate did not proceed to assess the secondary criterion in cl 309.321.

7. On 2 November 2022, the review applicant applied to the Tribunal for review of the delegate’s refusal decision. The review applicant was represented in relation to the review.

8. The Tribunal notes that this was the second time the review applicant made a review to the Tribunal in respect of a decision to refuse the visa applicants the Subclass 309 visas. Previously, the review applicant sought review of a decision made on 7 August 2018 by a delegate of the Minister to refuse the visa applicants the visas because the delegate found that the visa applicant did not meet cl 309.225 because she did not meet Public Interest Criterion (PIC) 4020. On 22 December 2021, a telephone hearing was held and on 21 January 2022, the Tribunal (constituted differently) decided to remit the applications for the visas for reconsideration with the direction that the visa applicant did meet PIC 4020 for the purposes of cl 309.225. That matter is AAT reference number 1822721no. The Tribunal has read that decision, including the then presiding Member’s findings that the applicants were ‘truthful and credible’ and that ‘[t]heir commitment, in the Tribunal’s opinion seems to be total and to each other and to their family’. Notwithstanding, the Tribunal confirms that it has decided the present review in AAT reference number 2216048 on its merits.

9. On 11 December 2023, the Tribunal invited the review applicant and primary visa applicant to attend a hearing on 18 January 2024. However, on 15 January 2024, the scheduled hearing had to be cancelled due to the Member being unwell. The hearing was rescheduled to take place on 9 February 2024.

10. The Tribunal gave its decision on the review at the conclusion of the hearing held on 9 February 2024. The following are the reasons for that decision.

11. On 9 February 2024, the review applicant appeared, in person, before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence, in person, from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The interpreter also attended the hearing in person. The representative also attended the hearing in person. The Tribunal notes that the parties submitted a copy of a document titled ‘Tenant Payment History’ at the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue for determination in this matter is whether, at the time of application on 12 September 2017, the visa applicant was the spouse of the review applicant. As has been explained, the delegate was not so satisfied.

14. Evidence of events subsequent to the visa application is relevant if it ‘tends logically to show the existence or non-existence of facts relevant to the issue to be determined’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. In making findings about the status of the parties’ relationship at the time of application, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application.

15. In the circumstances of this case, the Tribunal considers that it is appropriate to make findings about cl 309.221 (a time of decision criterion) as well.

    Whether the parties are in a spouse or de facto relationship

16. 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.

17. The visa applicant claims to be the spouse of the review applicant who is an Australian citizen. There is evidence before the Tribunal, namely a Victorian registration for a change of name which is on the Department’s file, that the review applicant was previously named Duc Thang Nguyen and that he changed his name to Tony Nguyen. The Department’s file also contains a copy of a Certificate of Australian Citizenship in the name of ‘Duc Thang Nguyen’. and the bio-pages of his Australian passport. From the evidence before it, the Tribunal is satisfied that the review applicant is an Australian citizen.

18. ‘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).

19. 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 specific matter contained in reg 1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

20. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. On 18 September 2016, the review applicant and the visa applicant married in Abbotsford, Victoria. A certified copy of the registered marriage certificate is on the Department’s file. 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?

21. In order to make the requisite findings about the reg 1.15A(3) matters and the s 5F(2)(b)–(d) requirements, the Tribunal has had regard to all the documents on the Department’s file and on the Tribunal’s file as well as to the oral evidence given at the Tribunal hearing.

    Regulation 1.15A(3) matters

    The financial aspects of the relationship

22. Any joint ownership of real estate or other major assets, any joint liabilities, the extent of any pooling of financial resources, whether one person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day-to-day household expenses are relevant matters to consider when assessing the financial aspects of the relationship.

23. In the primary decision, the delegate had been critical of the lack of evidence submitted as to the claimed financial aspects of the relationship, noting that the most recent evidence comprised bank statements from 2017.

24. At the hearing, both the review applicant and the visa applicant gave consistent oral evidence that they did not jointly own real estate or other major assets and that they did not have any joint liabilities. The Tribunal accepts this oral evidence. There is no evidence to the contrary.

25. When asked, they each said that they had not made a will listing the other as a beneficiary and did not have a superannuation fund in which they had nominated the other as a beneficiary. As the review applicant explained, that had not made wills as they do not have valuable assets and they do not have superannuation. The Tribunal finds that there is no evidence before the Tribunal that one person in the relationship owes any legal obligation in respect of the other.

26. Both parties gave broadly consistent oral evidence about their joint bank accounts.

27. The review applicant told the Tribunal that, before the COVID-19 pandemic, they had had a joint bank account with a named Australian bank. He said that, at that time, he was working, and all his salary was deposited into the account. He said that during the pandemic, neither of them had worked and they closed the bank account. He said that in order to receive JobSeeker, he needed to open a bank account and they opened two accounts at the same named Australian bank. He said that, at the time of the hearing, his social security is deposited into one of the joint accounts. He said that his social security had always been deposited into a joint bank account. He said that the visa applicant is paid in cash for her work. He said that he takes that cash to pay for their rent and to pay for groceries. 

28. The visa applicant told the Tribunal that, during the COVID-19 pandemic, their bank account was inactive and that they had both used cash. She explained that she worked in a restaurant, as a server and someone who does washing and cleaning. She said that she is paid in cash and that she does not know how to deposit money into the bank or use an ATM. She said that she gives the cash to the review applicant and that he is responsible for it. She said that, at the time of the hearing, the review applicant was not working because of his poor health and that it is her earnings which are used to pay for their life—for their bills and groceries. When asked, the visa applicant told the Tribunal that the review applicant receives social security and that it is paid into their joint bank account.

29. Based on the evidence before the Tribunal, the Tribunal finds that both at the time of application and at all times leading to and including the time of this decision, the review applicant and the visa applicant have pooled their financial resources.

30. With respect to any sharing of day-to-day household expenses, the Tribunal also accepts and gives weight to the parties’ consistent and credible oral evidence that they share these expenses. For example, the review applicant told the Tribunal that they share the payment of their rent. The visa applicant said that the rental property was in both names. When asked, both parties gave consistent oral evidence about the amount of rent they pay each month. The review applicant gave oral evidence that they used cash to pay for a lot of their day-to-day household expenses. He explained that the visa applicant has very limited ability with the English language, was not very highly educated in Vietnam and that she cannot use an ATM.

31. The Tribunal notes that there are some documents before the Tribunal to corroborate various claims about the financial aspects of the parties’ relationship. In addition to the documents that were before the delegate, the Tribunal notes documents such part of bank statement no 8; all of bank statement no 9 for the period 1 July 2020 to 31 December 2020;  part of a transaction listing for a joint bank account for the period 1 January 2021 to 1 April 2021 and what appears to be part of another transaction listing showing transactions from 23 February 2021 to 1 April 2021. These documents show frequent use of the account during those periods. Noting two large transfers of money into the account from a person known as ‘Putra G’ in April, for $5,000 and $10,000 respectively (see statement no 8), the Tribunal questioned the review applicant about these amounts. He said that he had had a business before the COVID-19 pandemic and that the person was repaying him. The Tribunal asked the review applicant if the visa applicant would know about these transactions and give consistent oral evidence. He said that she does not know about the transactions because he controls the finances. The Tribunal accepted the review applicant’s oral evidence about this matter and did not ask the visa applicant about the transactions.

32. The Tribunal accepts the parties’ oral evidence about the financial aspects of their relationship—both in the past and at present. Despite the limited documentary evidence to corroborate all of their claims (for example, the Tribunal could not easily see the review applicant’s social security being deposited into the joint bank account), the Tribunal gives some weight to the evidence of the financial aspects of the relationship. The Tribunal considers that the evidence points to the parties being in a spousal relationship both at the time of application and at the time of this decision.

    The nature of the household

33. Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are relevant matters to be considered when assessing the nature of the household.

34. With respect to any joint responsibility for the care and support of children, the Tribunal notes that the review applicant has a son from a previous relationship and that the visa applicant has two sons from her previous marriage, the youngest of whom is the secondary visa applicant. At the time of application, the review applicant’s son and the secondary visa applicant were minors (both 16 years). The visa applicant’s older son was 21 years of age.

35. There is no evidence before the Tribunal that, at any time in the claimed spousal relationship, the review applicant and the visa applicant were jointly responsible for the care and support of the review applicant’s son. There is no evidence that the review applicant’s son has ever lived with them although the visa applicant gave oral evidence that, from time to time, he visits them at their home.

36. The parties appear to claim that there has been mutual care and support towards the visa applicant’s sons. For example, in the parties’ jointly signed statement of 24 August 2017 the visa applicant stated, ‘[b]efore we left Vietnam, when we were at Tan Son Nhat Airport, … I asked Tony about my children Tony said he would provide financial support for them to continue to study and treat them as if they were his own children. I was happy’. Further, in her signed statement to the Department of 30 July 2018, the visa applicant stated that the review applicant ‘has cared for my children and treated them as if they were his own children’. At the hearing, the visa applicant told the Tribunal about her observation that the review applicant truly loved her children as well as herself and that being one of the reasons she married him.

37. At the hearing, the review applicant gave oral evidence that he had sold his property in Dandenong so that they could pay tuition fees for the visa applicant’s two sons as they had both been ‘overseas students’. The review applicant told the Tribunal about the secondary visa applicant’s study (certificate IV in welding) and said that one of his hopes for the future was that the children graduate and find employment.

38. The Tribunal accepts the parties’ consistent evidence that, during their claimed relationship, they have both provided care and financial support to the visa applicant’s two sons.

39. With respect to the living arrangements of the persons, both the review applicant and the visa applicant gave consistent oral evidence that they started living together after their marriage. They both said that, at that time, they also lived with the visa applicant’s two children and that they all lived together in the review applicant’s home at a named property in Dandenong. They said that, at the time of the hearing, they were living in a rental property (the visa applicant told the Tribunal that it was in a different named suburb in the south-eastern suburbs of Melbourne) and that only the applicant’s younger son—the secondary visa applicant—was living with them as her older son has returned to live in Vietnam. The review applicant explained that the older son’s visa had expired. When asked, they both told the Tribunal that there had been no periods of separation and that they had lived together continuously. The review applicant explained that, after selling his unit, they had been able to remain in that property and rent it from the new owner until January 2023.  

40. In the primary decision, the delegate had been critical that, at that time, ‘the latest evidence provided is from a tenancy agreement in 2017 and a rent payment receipt in 2019’ and that there were ‘no recent utility bills or correspondence sent to the applicant or sponsor at the same address’. 

1. In this review, the Tribunal has had the benefit of hearing the parties’ consistent and credible oral evidence as well as the benefit of further documentary evidence corroborating their claimed living arrangements. For example, in this review, they submitted a copy of a signed ‘Entry Condition Report’ from a real estate agency recording the review applicant as ‘the renter’ of a property in a named suburb in the south-eastern suburbs of Melbourne. The document is dated 12 January 2023. They also submitted a copy of a document titled ‘Tenant Payment History’. The Tribunal accepts and gives weight to evidence of the parties’ living arrangements.

2. With respect to any sharing of the responsibility for housework, the review applicant gave credible oral evidence that they shared the cooking, explaining that he used to be a chef and that the visa applicant works in a restaurant. He said that he sometimes does the grocery shopping but that the visa applicant did this more than him. He said that the visa applicant takes care of their laundry, and he does outside jobs such as fixing things and mowing the lawn. The visa applicant gave broadly consistent oral evidence, explaining that the review applicant was a very good cook and does more cooking than she does but that sometimes they cook together. She said that, with respect to grocery shopping, it was something they could both do but the Tribunal formed the impression that they did it separately. She said that she did most of the cleaning and washing but that the review applicant did help her. 

3. As is the case in many partner visa cases that come before the Tribunal, there is limited photographic or third-party evidence to corroborate the claims as to the responsibility for housework. The Tribunal does not consider the lack of corroborating evidence from third parties as to the responsibility for the housework to be the reason or a part of the reason to affirm the decision under review. Rather, the Tribunal accepts the parties’ consistent oral evidence that they share the responsibility for the housework.

4. The Tribunal considers that the evidence of the nature of the household is suggestive of a spousal relationship both at the time of application and at the time of this decision and accordingly the Tribunal gives great weight to it.

   The social aspects of the relationship

5. Whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.

6. In the primary decision, the delegate had been critical of the lack of current evidence of the claimed social aspects of the relationship, noting that the photographs had been submitted in 2017 and that the two statutory declarations from friends were ‘similarly worded and contain generic relationship information’.

7. With respect to whether the persons represent themselves to other people as being married to each other, the visa applicant told the Tribunal that they had celebrated their marriage at a wedding in Vietnam. She noted that none of the review applicant’s siblings live in Vietnam and that they had not attended the wedding but that the wedding had been attended by her family. She said that she had met some of the review applicant’s brothers who live in Australia but that they did not socialise with them very often. The review applicant gave oral evidence about where these various siblings live in Melbourne and the Tribunal notes that they live in very geographically spread regions of Melbourne.

8. When asked whether their families and friends approve of the relationship, both the review applicant and the visa applicant said that they did. The visa applicant explained that her siblings were supportive of the relationship because they know that the review applicant loves her. She said that the review applicant’s family supported the relationship too. The review applicant recounted the siblings in Australia whom the visa applicant has met.

9. The Tribunal notes there are various photographs showing the parties together with family members and friends in both Australia and Vietnam.

10. With respect to the opinion of the persons’ friends and acquaintances about the nature of the relationship, the Tribunal notes and gives some weight to the three Form 888 supporting statements made by persons known to the couple that were submitted in this review. These documents are as follows:

    ·Form 888 made by Mr Michael Harrison (the review applicant’s work colleague of over 15 years) on 6 January 2024;

    ·Form 888 made by Mr Kennedy Nguyen (the visa applicant’s friend) on 7 January 2024; and

    ·Form 888 made by Mr Quoc H Pham (the visa applicant’s boss) on 8 January 2024.

11. The Tribunal notes that these men attest to their knowledge and approval of the relationship. All of them claim to have known the parties for a number of years and are aware of the partner relationship. The Tribunal considers that their reasons for considering the parties’ partner relationship to be genuine and continuing are considered and relatively detailed.

12. However, the Tribunal notes that there were some statements in Mr Harrison’s statement and in Mr Nguyen’s statement which the Tribunal questions.

13. Mr Harrison claims that he has known the review applicant and the visa applicant ‘for over 15 years now’. However, the parties claim that they first met in March 2016. The Tribunal considers it is possible that Mr Harrison meant that he had known the review applicant for over 15 years. However, Mr Harrison’s statement that he had been ‘watching his kids’ grow from kids (babies) to teens and young adults’ does not appear to reflect the reality of the review applicant’s and the visa applicant’s family. The statement is odd, especially since the review applicant told the Tribunal that Mr Harrison was his closest friend in Australia. For this reason, the Tribunal gives very limited weight to Mr Harrison’s statement. 

14. Mr Nguyen’s statement that the couple ‘plan to start their own family with Mang kid in the next few years’ time once Mang has a chance to settle down in Australia’ also strikes the Tribunal as odd. It will be recalled that, at the time of this decision, the visa applicant is 52 years of age. The Tribunal observed her refer to herself as ‘old’ throughout the hearing. This statement does not trouble the Tribunal to the extent that Mr Harrison’s statement about the ‘babies’ does though because it is possible that there is an issue with the expression and Mr Nguyen meant to talk about the growth of the family by way of the visa applicant’s children having children. For this reason, the Tribunal has decided to give weight to Mr Nguyen’s statement.

15. With respect to any basis on which the persons plan and undertake joint social activities, the review applicant told the Tribunal that his car was old so they could not travel far together but he noted that they have gone to Phillip Island together. The review applicant described the visa applicant as a quiet person. He said that it was rare for them to socialise with friends and that they tended to socialise with family.

16. The visa applicant noted that they had travelled to Vietnam together to visit her family, to hold their wedding celebration and to complete the paperwork for the visa. She also said that as they were both ‘quite old’, they do not organise parties at their home in Melbourne. She said that, ordinarily, they go out for a meal instead.

17. The Tribunal noted to each party that it had a copy of their movement records which evidence that, since their trip to Vietnam where the visa applicant lodged the application for the visas on 12 September 2017, the review applicant has departed Australia for trips on two other occasions without the visa applicant. The copy of the review applicant’s movement records stated that he was still offshore. The review applicant explained that he had just returned to Australia in the hours prior to the Tribunal hearing and that he had travelled from the airport to the Tribunal.

18. The review applicant said that both trips had been to Vietnam and that he had travelled on his own as the visa applicant could not get a visa to leave. He said that he had taken the most recent trip to visit the visa applicant’s mother who is 87 years of age and unwell. When asked, he said that he had not taken any photographs.

19. The visa applicant gave broadly consistent oral evidence. She said that the review applicant had taken his recent trip to Vietnam so that he could visit her mother. She said the review applicant had taken the previous trip so that he could complete paperwork for her. When asked why she had not travelled with him on either trip, she said that it was because her ‘visa status had not been approved’.

20. The Tribunal found both the review applicant and the visa applicant to be credible when giving their oral evidence about the social aspects of the relationship. The Tribunal accepts and gives weight to their oral evidence as well as to the various documentary and photographic evidence in support of their claims. The fact that the review applicant had two trips to Vietnam without the visa applicant is not the reason or a part of the reason for the Tribunal to affirm the decision under review.

21. The Tribunal gives great weight to the evidence of the social and public recognition of the relationship. The Tribunal considers that it points to the parties being in a spousal relationship both at the time of application and at the time of this decision.

    The nature of the persons’ commitment to each other

22. The duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the persons draw from each other, and whether the persons see their relationship as long-term are all matters to be considered in determining the nature of the persons’ commitment to each other.

23. As was the case with the other reg 1.15A(3) matters, the delegate had been critical in the primary decision about the dearth of evidence in support of the claimed nature of the persons’ commitment to each other.

24. In this hearing, the Tribunal had the advantage of hearing the review applicant’s and the visa applicant’s oral evidence about the nature of their commitment to one another at an in-person hearing.

25. At the hearing, the review applicant and the visa applicant gave consistent and credible oral evidence about the inception and development of the claimed relationship. They both told the Tribunal that they had first met when the visa applicant was living at her cousin’s[1] home (in Melbourne) and the review applicant attended the property to work on the bathroom there. They developed a friendship and later a romantic relationship, leading to their marriage and living together. This evidence is consistent with the claims they made to the Department at the time of application.

    [1] When asked, the visa applicant said that her cousin is Miss Anh Tran.

26. The applicant’s and the sponsor’s evidence about the inception and development of their relationship—both in their statements and in their oral evidence at the hearing—was detailed and consistent. The Tribunal gives weight to the fact that the parties have been married and living together since 18 September 2016—for approximately seven and a half years.

27. The Tribunal has considered the parties’ respective ages, backgrounds and life experiences, and accepts that, both at the time of application and at the time of this decision, neither party was, nor is in a relationship with any third party.

28. With respect to the degree of companionship and emotional support that the persons draw from each other, the visa applicant told the Tribunal that there were ‘many times’ when the review applicant had shown her that he was worried about her visa status and depressed for them as they were ‘not young anymore’. She said, ‘he wants me to stay’. She said that, at these times, she told him to stay strong and that she will support him. Similarly, she said that when she was worried about her visa that the review applicant reassured her by telling her that their time would come, and they would be able to live together with no worries. When the Tribunal asked the review applicant how they had supported one another during the COVID-19 pandemic lockdowns, he noted that he had taken the visa applicant to be vaccinated. He noted the exact number of their multiple vaccinations.

29. The Tribunal questioned both parties about their knowledge of each other and their lives—such as their closet friend or friends and their leisure interests—and is satisfied that they both demonstrated knowledge of each other’s lives suggestive of a couple in a genuine and ongoing spousal relationship.

30. With respect to whether the persons see their relationship as long-term, both the review applicant and the visa applicant said that they did see their relationship in those terms. The review applicant noted that he was over 60 years in age and said that this was the last relationship of his life. He said that he hoped that the visa applicant would remain in good health and could care for him. When asked whether he and the visa applicant had discussed what they would do if her visa was rejected, he said that they had not discussed it. He said that he had spent more than 40 years in Australia and doubted that he could live in Vietnam and adapt to a new life there. The visa applicant said that she hoped that the Tribunal could enable her to stay with the review applicant for the rest of her life. She too noted their age, saying ‘we are old people now’. She said that she just wanted to live with him.

31. The Tribunal found both parties’ evidence to be credible. The parties gave broadly consistent oral evidence, but their answers did not appear rehearsed, but rather spontaneous and natural.

32. The Tribunal accepts and gives weight to the parties’ oral evidence and is satisfied that they are in a genuine and continuing relationship.

33. Accordingly, the Tribunal is satisfied, considering all the evidence cumulatively, that the review applicant and the visa applicant have demonstrated and continue to demonstrate a level of commitment to one another and to their spousal relationship as contemplated in the Regulations.  

34. The Tribunal gives weight to the nature of the person’s commitment to each other.

    CONCLUSION

35. As stated above, the Tribunal is satisfied that the parties are validly married, as required by s 5F(2)(a) of the Act.

36. For the reasons given with respect to the reg 1.15A(3) matters, the Tribunal is satisfied that, at both the time of application and at the time of this decision, the review applicant and the visa applicant:

    ·had and have a mutual commitment to a shared life as husband and wife to the exclusion of all others, as required by s 5F(2)(b) of the Act;

    ·had and have a genuine and continuing relationship, as required by s 5F(2)(c) of the Act; and

    ·were living together or were not living separately and apart on a permanent basis and are living together or are not living separately and apart on a permanent basis, as required by s 5F(2)(d) of the Act.

37. Based on the above, the Tribunal is satisfied that the requirements of s 5F(2) were met at the time the visa application was made and are met at the time of this decision. Therefore, the visa applicant meets cl 309.211 and cl 309.221.

38. As the Tribunal has found that the visa applicant meets the criteria in cl 309.211 and cl 309.221, the ability of the secondary visa applicant to satisfy the criteria for the grant of the visa should also be reconsidered.

39. Given the findings above, the appropriate course is to remit the application for the visas to the Minister to consider the remaining criteria for Subclass 309 visas.

    DECISION

40. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first-named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl 309.211 of Schedule 2 to the Regulations; and

    ·cl 309.221 of Schedule 2 to the Regulations.

    Justine Clarke
    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).