Nguyen (Migration)

[2018] AATA 3411

Nguyen (Migration) [2018] AATA 3411 (27 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Thi Lien Nguyen

CASE NUMBER:  1724644

DIBP REFERENCE(S):  BCC2016/1984385

MEMBER:P. Maishman

DATE:27 August 2018

PLACE OF DECISION:  Perth

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) of Schedule 2 to the Regulations

·cl.820.221 of Schedule 2 to the Regulations

Statement made on 27 August 2018 at 1:45pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) – Subclass 820 (Spouse) – Whether the applicant is the spouse of the sponsor – Lived together for an extended period of time – Joint bank accounts – Letters of support from family – Relationship disclosed to Department of Veteran Affairs – Decision under review remitted for reconsideration 

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

CASES
Bretag v MILGEA [1991] FCA 582
Jayasinghe v MIMA [2006] FCA 1700

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 25 September 2017 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 6 June 2016 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 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, 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 cl.820.211(2)(a) because the delegate was not satisfied there was sufficient evidence and information to demonstrate that the applicant was in a spousal relationship with the sponsor.

4. The Tribunal had access to the Department’s file. Limited documentary evidence of the relationship was provided to the Department. The applicant provided the Tribunal with information not previously supplied to the Department including: –

   a.statement of the sponsor dated 10 October 2017;

   b.USB memory stick containing photographs of family and social events;

   c.statements for Westpac accounts (2) from March 17 to September 17;

   d.letter from the Department of veterans affairs dated 15 May 2017;

   e.caravan park receipts; and

   f.letters of support from:-

   i.Dr Jonathan Rice

   ii.Dr Kristin McMahon

   iii.Dr Divyanshu Dua

   iv.Huu LuuThi Duy An Tran

   v.Manuel Zambrano

   vi.Augustin Ngyuen  

5. The Tribunal considered the information contained in the Department’s file and the additional information provided by the applicant to the Tribunal and determined it could make a decision without proceeding to hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant is a 45-year-old Vietnamese citizen. She has been married previously and has an 18-year-old daughter.

8. The sponsor is a 71-year-old Australian citizen. He has been married twice previously and has two children from a previous relationship.

9. The applicant claims to have first met the sponsor in June 2013 in Vietnam. She claims that they committed to a shared life together to the exclusion of all others in June 2015 and have not lived separately and apart for any period of time. The sponsor had to return to Australia from Vietnam as his Vietnamese visa expired in August 2015, however the applicant was granted an Australian visa and the applicant and sponsor reunited in Australia in October 2015 and have lived together since.  

10. The Tribunal had access to, and considered the documents and evidence provided on the Department’s file. The applicant provided significantly more documentary evidence to the Tribunal with her application.

11. The issue in the present case is whether the applicant is the spouse of the sponsor.

    Whether the parties are in a spouse or de facto relationship

12. 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. The sponsor has provided the department an Australian passport showing he was born in Australia. The Tribunal finds the sponsor is an Australian citizen.

13. ‘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 r.1.15A(3), which is extracted in the attachment to this decision.

    Are the parties validly married?

14. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The applicant provided with her application a marriage certificate certified by the Registrar of Births, Deaths and Marriages in New South Wales. The certificate shows the applicant and sponsor were married in New South Wales on 1 May 2016. 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 spousal relationship met?

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

16. The Tribunal finds there is no evidence the parties are joint owners of real estate and the parties do not have joint liabilities. The bank statements provided to the Tribunal confirm the applicant and sponsor have accounts in joint names. The accounts show few deposit/withdrawal type transactions that would assist the Tribunal to form an opinion about the pooling or sharing of financial resources, however the accounts they do indicate that the parties share an account with a reasonable asset value. The sponsor has declared that their only source of income is a service pension from the Department of Veterans Affairs (DVA). The Department of Veterans’ Affairs confirms the applicant can apply for a Partner service pension on receipt of a permanent visa.

17. The Tribunal finds that the parties only source of income is that of the sponsor, derived from the DVA. The sponsor shares his income with the applicant in respect of their day to day living expenses.

18. The Tribunal considers the financial aspects of the relationship are consistent with a genuine married relationship.

19. The Tribunal considered the nature of the household including joint responsibility for the care and support of children; living arrangements of the persons; and any sharing of the responsibility for housework.

20. The parties do not have joint responsibility for the care and support of children. Invoices from caravan/tourist parks are addressed to both parties at their home address in Safety Bay. The applicant states that she and the sponsor live together and travel together in Australia and overseas (f87 of the Department’s file). Tourist park invoices issued in joint names support the parties’ statements of lengthy travel together and extensive cohabitation in a confined space. The Tribunal accepts the sponsor’s written statement and finds that when they are travelling or in their fixed abode they eat and sleep together and share their household routines.

21. The Tribunal considered the documentary evidence provided to the Department and to the Tribunal and finds the circumstances of the nature of the household to be consistent with a genuine married relationship.

22. The Tribunal considered the social aspects of the relationship including whether the applicant and sponsor represent themselves as being married to each other; the opinion of their friends and acquaintances; and the basis on which they plan and undertake social activities.

23. Evidence from the DVA shows that the applicant and sponsor made that department aware of the relationship from at least May 2016. The parties have provided many photos showing social activities with family and friends. The sponsor’s adult daughters have provided statements confirming their knowledge of the parties’ relationship as did two of their friends.

24. The applicant provided to the Tribunal a copy of a letter of support from Dr Jonathon Rice dated 26 September 2017. Dr Rice confirms that he has known the applicant and sponsor since March 2017 and witnessed them supporting each other during intensive treatment for a significant diagnosed medical condition. He states the parties attended multiple medical appointments each week and he is satisfied that they are a legitimate couple and supports the application for permanent residence.

25. The Tribunal accepts the documentary evidence provided by the supporting witnesses and finds the social aspects of the relationship to be indicative of a married relationship.

26. The Tribunal considered the nature of the applicant and sponsors 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 a long-term one.

27. The Tribunal accepts the parties claim to have resided together since the applicant arrived in Australia in October 2015. The Tribunal attributes significant weight to the statement of Dr Rice in finding that the parties provide each other with a significant degree of companionship and emotional support. The Tribunal accepts the parties’ statement that they see their marriages a lifetime one and are fully committed to each other.

28. The Tribunal finds the parties have been in a relationship and lived together for an extended time. They are close companions and provide extensive emotional support to one another. The Tribunal finds the nature of the applicant and sponsors commitment to each other to be indicative of a married relationship.

29. The Tribunal has had regard to the judgement of Bretag v MILGEA[1] and Jayasinghe v MIMA[2] in regard to its consideration of evidence subsequent to the visa application. In Bretag v MILGEA the court held that, in determining the nature of a relationship at a particular time, evidence of subsequent events may be taken into account if it tends to logically show the existence or non-existence of the relationship at that particular time. However the Tribunal must be careful not to attribute too much weight to the evidence of subsequent events.

    [1] [1991] FCA 582

    [2] [2006] FCA 1700 (Middleton J, 12 December 2006) ay [35] citing MIEA v Pochi (1980) 4 ALD 139 at 160, per Deane J.

30. In assessing whether the applicant and sponsor are in a genuine spousal relationship, the Tribunal has considered all individual and cumulative evidence available to the Tribunal at the time of review. Having regard to the principles outlined in the decision of Jayasinghe v MIMA, when considering the circumstances of the relationship, the Tribunal considers that evidence of later events tend logically to support the existence of the parties prior relationship.

31. Having considered the r.1.15A(3) matters the Tribunal finds that the applicant and the sponsor have a mutual commitment to a shared life as a married couple to the exclusion of all others; the relationship between them is genuine and continuing; and the applicant and sponsor live together or do not live separately and apart on a permanent basis.

32. 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 time of this decision.

33. There is no evidence that the sponsor is prohibited by subclause (2B) from being a sponsoring partner and the applicant meets cl.820.211(2)(a). The sponsor has completed the requisite sponsorship form and the Tribunal accepts that the applicant is sponsored and so meets cl.820.211(2)(c) and, as the applicant is the holder of a substantive visa, cl.820.211(2)(d) does not apply.

34. Therefore the applicant meets cl.820.211(2) and cl.820.221.

35. 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

36. 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) of Schedule 2 to the Regulations

    ·cl.820.221 of Schedule 2 to the Regulations

    P. Maishman
    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).