Nguyen (Migration)

[2024] AATA 460

Nguyen (Migration) [2024] AATA 460 (11 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tuan Anh Nguyen

REPRESENTATIVE:  Ms Myyen Tran

CASE NUMBER:  1910039

HOME AFFAIRS REFERENCE(S):          BCC2018/1660612

MEMBER:David Barker

DATE:11 January 2024

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) visa:

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

·cl 820.221 of Schedule 2 to the Regulations

Statement made on 11 January 2024 at 4:25pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – the parties were validly married – parties share joint responsibility for the care and support of their  child – parties see their relationship as a long-term commitment – financial aspects of the parties’ relationship points in favour of them being in a genuine and continuing relationship – have been living together – decision under review remitted        

LEGISLATION
Migration Act 1958, ss, 5F, 65
Migration Regulations 1994, r 1.15, Schedule 2, cls 820.211, 820.221

CASES
He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant (the applicant) applied for the visa on 13 April 2018 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy 820.211 because they were not satisfied the evidence before them demonstrated that the applicant is a spouse or de facto partner of the sponsor, as defined under s 5F and s 5CB of the Act.

4. The applicant appeared before the Tribunal on 11 January 2023 to give evidence and present arguments. The Tribunal also received oral evidence from his wife (the sponsor). The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicant was represented in relation to the review.

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

   BACKGROUND

7. The applicant is a national of Vietnam and is 43 years of age. He first arrived in Australia in February 2018 on a Visitor visa, the cessation of which was followed by the visa application which is the focus of the current review.

8. The sponsor was also born in Vietnam and is 40 years old. She came to Australia in 1999 and is an Australian citizen by grant in 2002.

9. Information provided in association with the visa and review application indicates that the applicant and sponsor (hereafter when discussed jointly referred to as the parties) first met in December 2015 in Hanoi, Vietnam. The information indicates that they subsequently committed to a shared life together to the exclusion of others in October 2017 and were married in Parramatta, NSW on 24 February 2018. Since that time they have had a child, born in March 2023 at Fairfield District  Hospital,  Prairiewood, NSW.

10. Documents that were provided to the Department in support of the Partner visa application included:

    • Marriage certificate and other evidence relevant to parties wedding and identities;
    • Bank statements, taxation records and other financial evidence;
    • Utility accounts and other correspondence evidence;
    • Rental tenancy agreements and other documents pertaining to rental accommodation in Dalkeith Street, Busby, NSW;
    • Travel records;
    • Photographs;
    • Form 888 statutory declarations completed by third parties.

11. The delegate decision record, a copy of which was provided with the review application, indicates the delegate considered there to be insufficient evidence provided in support of the visa application to be satisfied the parties were in an ongoing, genuine spousal relationship.

12. Prior to the hearing the Tribunal received further documentary evidence including:

    • Applicant statutory declaration, dated 24 May 2023;
    • Birth certificate for the parties’ child and medical evidence relevant to sponsor’s pregnancy;
    • Bank transaction statements, taxation records, utility accounts and other financial evidence;
    • Rental tenancy agreements and other documents pertaining to rental accommodation in Dalkeith Street, Busby, NSW, Petunia Road, Bankstown, NSW and Little Road, Bankstown, NSW.
    • Untranslated text communication records;
    • Photographs.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the applicant and sponsor were in a genuine spousal relationship at the time of application and continue to be in a genuine spousal relationship at the time of this decision.

14. In making its findings, the Tribunal has considered documents contained in the Department and Tribunal files, as well as the oral evidence provided by the applicant and sponsor at hearing. The Tribunal found that the applicant and sponsor provided their evidence at hearing in a coherent, plausible and reasonable manner. The Tribunal is satisfied that the oral evidence at hearing is consistent with the documentary evidence available for the Tribunal’s consideration. The Tribunal is satisfied that the applicant and sponsor are a reliable source of information with regard to their relationship and can be regarded as providing credible evidence to the Tribunal.

    Whether the parties are in a spouse or de facto relationship

15. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.

16. ‘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 parties’ 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) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

17. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.

18. The Department file contain a copy of a Marriage Certificate issued by  NSW Births, Deaths and Marriages which states the parties registered their marriage in Parramatta, NSW on 24 February 2018. The Department file also contains a copy of a No-Fault Divorce Agreement issued by the People’s Court of Hoang Mai District, Ha Noi City, Vietnam regarding the applicant’s divorce from his previous spouse, which is dated 26 May 2011; and a Federal Circuit Court of Australia Divorce Order, dated 18 August 2016 regarding the sponsor’s divorce from her previous spouse.

19. There is no evidence which would suggest these documents are not genuine.

20. 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?

    Financial aspects of the relationship

21. The Tribunal has considered the financial aspects of the relationship, including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; and any sharing of day-to-day household expenses.

22. The parties gave evidence that they do not hold any shared assets of any note and that they have no shared liabilities or legal obligations with respect to each other.

23. As to the basis on which the parties pool their financial resources and meet their everyday expenses. They operate a joint account with the ANZ Bank  and have provided transaction statements which show evidence of them both transferring funds into this account and expenditure at outlets such as supermarkets, restaurants and other locations commonly associated with a couple’s day to day expenses. Of particular note, the applicant was without difficulty able to provide a plausible explanation for a random selection of transactions and also in relation to sources of funds deposited into the account over a six year period since 2018.

24. Further to the operation of their ANZ joint account, the applicant gave evidence that prior to the birth of their child in March 2023 the sponsor took responsibility for purchasing fresh food to be used in meal preparation and he would take responsibility for making sure enough money was in the joint account to cover rent. He explained that he and the sponsor are not required to pay for power or internet, as this is included with the room rent they pay for their current accommodation. He said that they would traditionally cover their own phone expenses, but that since the birth of their child he has assumed responsibility for most household expenses.

25. The applicant provided the Tribunal with an employment history in  range of driving / delivery related work roles, frequently as a sole trader working with a sub-contractor. He explained that he would like more secure employment but had difficulty securing it to date due to his unclear residency status. The applicant explained that the sponsor has secure employment with a company supplying airlines with inflight meals but that she is at present still on maternity leave.

26. In considering the financial aspects of the parties’ relationship, I note that there is  considerably more evidence, in the form of banking and other financial records, before the Tribunal, than was available to the delegate at the time of their decision. I am satisfied the parties claims at hearing about this factor are consistent with the documentary evidence that they have provided.

27. The Tribunal finds that the financial aspects of the relationship support a finding that the parties have a mutual commitment to a shared life together. The Tribunal has given weight to this aspect of the parties’ relationship.

    The nature of the household

28. The Tribunal has considered the nature of the household, including: any joint responsibility for the care and support of children; the parties' living arrangements; and any sharing of housework.

29. The parties share joint responsibility for the care and support of their  child, born March 2023. The Tribunal has given weight to this factor.

30. As to their living arrangements, the parties have given  a coherent and plausible explanation for their renting a room in a three bedroom duplex in Little Road, Bankstown, in which their landlord and the landlord’s mother also reside. Evidence provide by the landlord confirms this arrangement and that the parties also rented rooms from him in  a previous property owned by him in  Petunia Road, Bankstown.  In conjunction with evidence of tenancy in a property in Dalkeith St, Busby, NSW and correspondence evidence pertaining to these addresses, the parties have in the view of the Tribunal provided a satisfactory and plausible residential history covering a period since their marriage in 2018.

31. With regard to the sharing of housework, the parties gave consistent evidence that they share household tasks and the care of their child to the extent possible given the applicant’s employment commitments.

32. In considering the nature of the parties’ household arrangements, the Tribunal is satisfied the applicant and sponsor gave plausible accounts of their living arrangements. The Tribunal is satisfied that the nature of the parties’ household arrangements supports a finding that they have a mutual commitment to a shared life together. The Tribunal has given weight to this aspect of the parties’ relationship.

    The social aspects of the relationship

33. The Tribunal has considered the social aspects of the relationship, including whether the parties represent themselves to other people as being in a de facto relationship with each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

34. The evidence provided by witnesses through declarations provided at the time of application in the view of the Tribunal supports the claim that the parties present to family and friends as a couple in a committed relationship.

35. The Tribunal has reviewed a comprehensive range of photographs which have explanatory information to put them into context and is satisfied these show the parties together in the company of other people in a manner which is consistent with their representation to these other people as a couple in  spousal relationship.

36. The Tribunal is satisfied the available evidence indicates the parties present as a couple in a spousal relationship to entities in Australia such as NSW Births, Deaths and Marriages, health services and the Australian Taxation Office.

37. The Tribunal finds that the parties represent themselves as a couple in a genuine and continuing relationship and that is recognised by their friends and family. The Tribunal is satisfied that they participate in shared social activities.

38. The Tribunal finds the social aspects of the relationship support a finding that the parties are in a genuine and continuing relationship and have a mutual commitment to a shared life together to the exclusion of all others.

    The nature of the persons’ commitment to each other

39. The Tribunal has considered the nature of persons' commitment to each other, including: the duration of the relationship; the length of time they have lived together; the degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

40. The parties gave consistent, plausible and credible evidence as to their commitment to each other and their child. The Tribunal accepts that the parties met in December 2015 and  thereafter commenced a relationship. The Tribunal accepts that the parties have not lived separately and apart since their marriage in February 2018. The Tribunal finds that the relationship between the applicant and sponsor can appropriately regarded as long term, with six years now passing since their marriage. The Tribunal finds the parties both view their relationship as long term and has given weight to this factor and as well the duration of both the relationship and the period in which the parties have lived together.

41. The Tribunal is satisfied the parties share responsibility for the care and support of their child.

42. The Tribunal is satisfied, both through their presentation at hearing and evidence filed with the Tribunal that the parties provide emotional support and companionship to each other and that their relationship and their child are central features of their lived experience.

43. The photographs provided with the review application include those in which the parties are together, without the company of other people and those that show them with family and other people in social contexts. The Tribunal is satisfied they show the applicant and sponsor at ease in each other’s company. The Tribunal has given positive weight to this factor.

44. The Tribunal is satisfied that the evidence supports a finding that the parties have a mutual commitment to a shared life together to the exclusion of all others. The Tribunal is satisfied that their relationship is genuine and continuing.

    Conclusions on spouse criteria

45. Having regard to all the circumstances of this relationship, the Tribunal is satisfied that the applicant and his sponsor  married in February 2018 and that they  were at the time of application and are at the time of this decision in a genuine and continuing spousal relationship, that they have a mutual commitment to a shared life to the exclusion of all others, and that they live together, or not separately and apart, on a permanent basis.

46. Given these findings the Tribunal is satisfied that at the time the visa application was made and at the time of this decision the parties were in a genuine and continuing spousal relationship.

47. 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 at the time of this decision.

48. Therefore, the applicant meets cl 820.211(2)(a) and 820.221(1)(a).

49. The Tribunal is satisfied that the applicant was at the time of application and at the present time sponsored by his spouse. The applicant’s sponsor has turned 18 years of age and therefore satisfies the criteria in cl.820.211(2)(c). At the time of application, the applicant held a substantive visa and so the criteria in cl.820.211(2)(d) is not relevant.

50. Therefore the applicant meets cl 820.221.

51. 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

52. 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) visa:

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

    ·cl 820.221 of Schedule 2 to the Regulations

    David Barker
    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).