NGUYEN (Migration)

[2019] AATA 2203

NGUYEN (Migration) [2019] AATA 2203 (27 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lap Quyen Nguyen

CASE NUMBER:  1713379

DIBP REFERENCE(S):  BCC2015/3856688

MEMBER:Helena Claringbold

DATE:27 February 2019

PLACE OF DECISION:  Sydney

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

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

·cl.820.221(1)(a) of Schedule 2 to the Regulations.

STATEMENT MADE ON 27 FEBRUARY 2019 AT 7:02AM

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – lived together since October 2015 – emotional support and companionship – sponsor’s health issues – providing daily care – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 820.211, 820.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 14 December 2015, Mr Lap Quyen Nguyen, the applicant applied for a Partner (Temporary) (Class UK) visa.  The application was based on his spousal relationship with Ms Ann-Marie Truc Mong Tran, the sponsor.

2. On 20 June 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the applicant and the sponsor were in a genuine spousal relationship. As a result, the applicant did not meet cl.820.211(2)(a) and cl.820.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act).  This is a review of the delegate’s decision.

3. On 26 February 2019, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from Ms Tran. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration all the evidence in the Department of Immigration and Border Protection’s case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

6. The issue in this matter is whether the applicant is the spouse of the sponsor as defined in s.5F of the Act.

   BACKGROUND ON THE EVIDENCE

7. The applicant was born in 1993.  His parents and a sibling live in Vietnam. On 20 January 2014, he entered Australia as the holder of a student visa. In 2016 and 2017, he departed and entered Australia as the holder of a Student visa.

8. The sponsor was born in 1995 in Australia.  She is an Australian citizen. Her parents live in Australia. At the time of application she declared being the recipient of a government benefit.

9. On 14 June 2014, the parties met in Australia.  On 31 October 2015, the parties married.

   Is the applicant the spouse of an eligible resident?

10. The Tribunal is satisfied that the sponsor, at the time of visa application and at the time of decision, was and is an Australian citizen.

    Are the parties validly married?

11. At the time the visa application was made, the applicant provided evidence of her marriage to the sponsor. 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 parties in a spousal relationship?

    ‘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 husband and wife 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).

    CLAIMS AND FINDINGS

12. In forming an opinion as to 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 applicant’s and sponsor’s household and their commitment to each other as set out in r.1.15A(3) of the Regulations, which is extracted in the attachment to this decision.

13. Regarding the parties’ financial matters, the parties do not have any joint ownership of assets or joint liabilities or any financial legal obligations to each other. The parties have limited income derived from the applicant’s salary and ad hoc family help and have limited expenses. They contribute to the purchase of groceries for the household but otherwise do not have other household expenses. The Tribunal accepts that the parties share some day-to-day household expenses and pool their financial resources.

14. In the parties’ household they do not have any joint responsibility for the care and support of children. The parties live in Condell Park with the sponsor’s uncle and aunt and their children.  Correspondence addressed to the applicant and joint bank statements at this address have been provided. The parties are responsible for the cleaning of the house.  They do their own laundry and the sponsor’s aunt does the cooking. The Tribunal accepts that the parties share housework.

15. About the social aspects of the parties relationship.  The parties have travelled to Vietnam several times.  On their visit in 2017, the sponsor lived with the applicant ant the applicant’s family and the parties took short trips to places of interest. Third party statements attest to the genuine nature of the parties’ relationship. Statements written by the sponsor’s uncle and aunt provide information about the parties’ daily routine.  Photographic evidence depicts the parties together and with others at different locations. The Tribunal accepts that the parties present themselves and are recognised by others as being in a spousal relationship. The Tribunal accepts that the parties undertake joint social activities.

16. Regarding the parties’ commitment to their relationship, the parties married in October 2015 and have lived together since that time. At the time of application the parties stated that they wanted to finish their studies, find employment, save to purchase a house and have a family. In March 2018, the sponsor was referred to a specialist for renal failure. The parties ceased study and the applicant works part time to meet some of the parties’ financial commitments. The sponsor stated that since being diagnosed she has been hospitalised for lengthy periods and the applicant has always been by her side. She initially underwent haemodialysis in hospital several times weekly.  Since November 2018 she has this treatment at home.  The parties told the Tribunal that the sponsor has home dialysis seven days a week beginning at 9pm for eight hours. The parties told the Tribunal that their first priority is for the sponsor to be healthy and this is likely to involve kidney transplant. The parties continue to hold onto their aspirations to have their own home and a family.  The Tribunal accepts that the parties provide each other with emotional support and see their relationship as long term.

17. The Tribunal carefully considered information before it which caused the Tribunal to question (more broadly) the reliability of the applicant’s oral evidence.  Specifically, information that, the applicant provided to other entities a different residential address to that of the address where he lived with the sponsor. The applicant told the Tribunal that, he had previously lived at the different residential address. He stated that on one occasion when dealing with one of the entities, he could not remember the address where he lived with the sponsor and provided his previous residential address and on another occasion he failed to advise the entity of his change of residential address. Although the Tribunal found this explanation implausible, it weighted it against the consistent, succinct and spontaneous evidence the parties’ provide the Tribunal. This included detailed information about the sponsor’s health and the daily care she needs and other information about the parties’ circumstances and about their families, which is consistent with a couple in a spousal relationship. Although the Tribunal has concerns about the applicant continuing to use a previous residential address, it considered all of the evidence and determined this information is not fatal to the application under review.

18. Overall, the Tribunal is satisfied that the applicant and the sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others; that their relationship is genuine and continuing and that they do not live separately and apart on a permanent basis.  The applicant therefore meets the requirements of s.5F of the Act.  Given these findings, the Tribunal is satisfied that the parties are in a spousal relationship.

19. On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) of the Act are met at the time the visa application was made and at the time of this decision.

20. Therefore the applicant meets cl.820.211(2)(a) and cl.820.221(1)(a) of Schedule 2 to the Regulations.

21. 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

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

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

    ·cl.820.221(1)(a) of Schedule 2 to the Regulations.

    Helena Claringbold
    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).