Nguyen (Migration)

[2018] AATA 5309

Nguyen (Migration) [2018] AATA 5309 (21 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Minh Tuan Nguyen

CASE NUMBER:  1730266

DIBP REFERENCE(S):  CLF 2013/193677

MEMBER:Helena Claringbold

DATE:21 November 2018

PLACE OF DECISION:  Sydney

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

·cl.801.221 of Schedule 2 to the Regulations.

Statement made on 21 November 2018 at 1:19pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – genuine spousal relationship – pooling of financial resources – living arrangements – married since 2013 – supported each other through difficult times – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cl 801.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 14 August 2013, Mr Minh Tuan Nguyen, the applicant, applied for a Partner (Residence) (Class BS) visa.  The application was based on his spousal relationship with Ms Huong Ngoc Tram Nguyen, the sponsor.

2. On 17 November 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the applicant met cl.801.221(2) and cl.801.221 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 20 November 2018, the applicant appeared before the Tribunal to give evidence and present arguments. He provided the Tribunal with a copy of the delegate’s decision record. The Tribunal also received oral evidence from Ms Nguyen. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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 Departmental case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

6. The issue in the present case is whether the applicant is the spouse of the sponsor as defined in s.5F of the Migration Act 1958 (the Act).

   BACKGROUND ON THE EVIDENCE

7. The applicant was born in 1994 in Hai Duong, Vietnam. His parents and two siblings live in Vietnam.  

8. The sponsor was born in 1994, in Hai Phong, Vietnam. She is an Australian citizen. Her father lives in Vietnam.  Her mother and two siblings live in Australia.

9. On 13 July 2013, the parties married in Australia. On 5 July 2015, the applicant was granted a Subclass 820 partner visa.

   CLAIMS AND FINDINGS

   Are the parties validly married?

10. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The applicant provided evidence of his 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).

    Is the applicant the spouse of the ‘sponsoring partner’?

11. Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

    Are the parties in a spousal relationship?

12. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d).

13. In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and sponsor’s household and their commitment to each other as set out in r.1.15A(3) of the Regulations, which is extracted in the attachment to this decision.

    CLAIMS AND FINDINGS

14. On these aspects, the Tribunal has considered all the evidence before it and is satisfied the facts of this case are as follows.

15. About the parties’ financial matters, the parties do not have any joint ownership of real estate or other major assets.  The parties have made a deposit on a property with a completion date of 2021. They have joint liability for a bank loan and the applicant is incrementally meeting a debt because of a car accident. The parties’ income is derived from their salaries. They have a joint bank account where their salaries are deposited. From this account the parties manage their day-to-day household expenses. In addition the parties are financially assisting the applicant’s mother and family in Vietnam. The parties have been financially stressed and have financial challenges which they are resolving together. The Tribunal is satisfied that the parties pool their financial resources and share day-to-day household expenses.

16. In relation to the parties’ household, the parties do not have any joint responsibility for the care and support of children.  Various documents have been provided to support the parties’ rental arrangements and accommodation. A witness at the Hearing gave detailed evidence about the parties renting a granny flat from her since 2013.  Other ad hoc documents are addressed to the parties individually and jointly. In addition, the parties gave evidence about how they manage their household. The Tribunal accepts that the parties have established their household and share their housework.

17. Regarding the social aspect of the parties’ relationship, the parties enjoy going out with friends and attending events for family and friends. The parties have travelled together in Australia and Vietnam and the sponsor’s family travelled to Vietnam to meet the visa applicant’s family.  Third party statements attest to the genuine nature of the parties’ relationship.  Photographic evidence depicts the parties at various locations with others. The Tribunal accepts that the parties present and are recognised as spousal partners.  It also accepts that the parties plan and undertake social activities.

18. Concerning the parties’ commitment, the parties have been married since July 2013 and have lived together in a spousal relationship since that time. During their time together they have supported each through difficult times. They work together to resolve financial demands and jointly assist the applicant’s family. Recently they have been managing the stresses of the applicant’s mother’s future lung transplant. The sponsor recently travelled to Vietnam to provide assistance to the applicant’s mother and his family.  The applicant is also planning to travel to Vietnam in December prior to his mother undergoing the operations.  The parties intend to remain in Vietnam until the applicant’s mother is in a stable condition. The Tribunal accepts that the parties provide each other with companionship and emotional support and see their relationship as long-term.

19. The Tribunal is satisfied that the applicant and the sponsor are credible. It is satisfied that the parties 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.

20. Given these findings the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of this decision. Therefore the applicant meets cl.801.221(2)(c) 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 801 visa.

    DECISION

22. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

    ·cl.801.221 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).