Nguyen (Migration)

[2023] AATA 4682

Nguyen (Migration) [2023] AATA 4682 (21 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Thi Huong Nguyen
Ms Nguyen Su Rin Le
Mr Duc Phuc Le

REPRESENTATIVE:  Ms Jennifer Nguyen (MARN: 2117717)

CASE NUMBER:  1907341

HOME AFFAIRS REFERENCE(S):          BCC2017/2860212

MEMBER:Anne Grant

DATE:21 December 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with directions that:

The first named applicant meets the following criteria for a Subclass 820 (Partner) visa:

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

·cl 820.221 of Schedule 2 to the Regulations; and

The second and third named applicants meet the following criteria for a Subclass 820 (Partner) visa: 

·cls 820.311(a) and (b) of Schedule 2 to the Regulations

Statement made on 21 December 2023 at 9:56am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – applicant’s divorce from first husband – adverse allegation unreliable and possibly malicious, and evidence provided – validly married and child together – financial, household and social aspects of relationship and nature of commitment – travel and sponsor’s role in secondary applicants’ lives – limited support from sponsor’s family members – frank and reliable evidence and extensive documentation – members of family unit children – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5CB(2), 5F(2), 65, 376
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cl 820.211(2), 820.221, 820.311(a), (b)

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 applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant (the primary applicant) applied for the visa on 9 August 2017 on the basis of her relationship with her 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, (the second and third applicants in this review), who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visas on the basis that the primary applicant did not satisfy cl 820.211 because they found that the primary applicant and sponsor were not in a genuine and continuing relationship. 

4. The applicants appeared before the Tribunal on 7 December 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.  The sponsor gave his evidence in English.

5. The applicants were represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The primary visa applicant gave frank and credible evidence, as did the sponsor.  I accept their evidence as reliable.  Other witnesses were available to discuss the relationship on the day of the hearing, but at the time when they would have been called, they were not available outside the hearing room.  In any event, at that time I indicated to the applicants that I did not need to hear from those witnesses as I felt I had sufficient information directly from them to enable me to make a decision on this review in due course, subject to the provision of a copy of the formal divorce document of the primary applicant from her first husband.

8. The issue in the present case is whether the primary applicant is the spouse of her sponsor, at the time of application and at the time of making this decision. 

9. In support of the application, the applicant provided the documents as listed in the delegate’s decision (provided by the applicant to the Tribunal) and regard and consideration has been given to those documents.  Since applying for review of the refusal decision, the applicant has provided extensive additional information (nearly 1000 pages of additional material) in support of the review.  Those documents have been considered and are referred to below where relevant and pertinent to the issue in review. 

10. The Department provided a certificate of non-disclosure pursuant to s.376 of the Act dated 1 April 2019 in relation to three pages on the Departmental File, which can be described generally as a letter making allegations (in Vietnamese) dated 5 June 2017 and an Immigration In Confidence assessment and investigation notes and summary.  This certificate and the information it covers (and my decision not to attach any probative weight to the information it contains) is discussed further below. 

    Whether the parties are in a spouse or de facto relationship

11. Clauses 820.211 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.   

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: s 5F(2)(a).

    Are the parties validly married?

13. An allegation had been made to the Department in June 2017 that the primary applicant was still living and in an ongoing relationship with her first husband, the father of her two older children.  Such an allegation potentially raised a question about the validity of the marriage to the sponsor.  However at the time this allegation was made, the applicant was already in Australia so could not be said to be living with her former husband. I formed a view that the allegation appeared to be of doubtful reliability. At hearing the primary applicant gave evidence that she and her first husband separated about a year before their divorce in 2014.  She was given custody of the children as he did not want to have custody, but he had a right to have contact with them.  He has hardly seen them since they separated.  He moved to Saigon, met another woman and only has occasional contact by phone with his daughter.  I found the primary applicant’s evidence about the breakdown of the marriage to be credible and I accept it.  Evidence of the primary applicant’s divorce from her previous husband was provided after the hearing and is accepted.

14. I am satisfied on the evidence before me that neither party had any lawful impediment to marriage. A marriage certificate has been provided showing that the primary applicant and sponsor married in Melbourne on 6 July 2017 in a civil service solemnised by Mark Jonasz.   

15. 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).

16. I turn now to discuss each of the aspects of the relationship as required by regulation 1.15A at the time of application (August 2017) and at the time of making this decision. 

    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; any sharing of day-to-day household expenses.

17. Payslips and Bank statements provided by the parties disclose that the sponsor has consistently worked as a chef throughout the period that the visa applicants have been in Australia.  The statements disclose that his income has been used to support both himself and the applicants, including in meeting their need for accommodation, food and all daily necessities.  In January 2021 the primary applicant and sponsor jointly organised finance for the purchase of a home.  Mortgage documents have been provided in their joint names with Latrobe Financial financing the purchase of a property in Kings Park in which they currently live.  They moved into this house in around May 2021.  At hearing, the sponsor gave evidence that the loan was originally for $650,000 but they had already reduced that to $490,000.  He expressed dismay at interest rates and said that they had paid off some of the mortgage to try to restrain the interest costs. 

18. Although the parties do have a joint bank account, at first they principally used the sponsor’s accounts because the visa applicants did not work.  He provided the primary applicant with cash for bills and groceries and their evidence indicated that they jointly discuss and manage their financial affairs.  The parties have also provided evidence of an online savings account demonstrating that they had managed to save substantially since they have been together.  Those savings have been used to fund the purchase of their home.  The property is jointly owned and they are both named on the mortgage. 

19. Currently, the sponsor is taking a break from work after illness and the primary applicant has found work on a farm packaging vegetables.  She gave evidence that the sponsor had worked so hard to support them all this time that she wants to help him and contribute now when the sponsor needs this time off to recover. They each said that they don’t have signficiant savings any more, but as noted earlier, they are ahead on the mortgage repayments. 

20. The evidence suggests that the visa applicant and sponsor pool their financial resources, share liabilities and expenses as necessary, and that the sponsor’s income (and now the primary applicant’s income) supports the family in an unremarkable manner. They have a jointly owned home and are both responsible for the mortgage.  Consideration of the financial aspects of the relationship suggests that the primary applicant and the sponsor are in a genuine and continuing relationship and have been since the visa applicants arrived in Australia. 

    Nature of the household – including any joint responsibility for care and support of children; parties’ living arrangements; and any sharing of housework.

21. The parties have submitted evidence demonstrating that they have lived together with their children since their marriage, and that they currently live in their own home, purchased together in 2021.  Information they have submitted include official letters, Medicare information, insurance and utility and other bills addressed to them both (and in some cases, relating to the children) at their relevant addresses over the past six years.  Also provided are rental agreements or letters of confirmation from previous landlords confirming their joint rental of properties, and bank statements addressed to them both at various addresses, and mortgage documents related to the purchase of their home.

22. The parties have a joint child, Emma, born on 22 May 2021. Photographs have been provided from the child’s birth, showing the sponsor cutting the baby’s cord, holding her and together with the primary applicant. They gave evidence that the primary applicant provides the majority of care for the children when the sponsor is working long hours as a chef to financially support the family, though as noted above, at hearing it was indicated that he is currently taking a break from work after illness.  When asked if this was likely to cause financial difficulties for the family, the sponsor indicated that because they were so far ahead on the mortgage, it would not be a problem. He expects to find another job or return to work once he has recovered.  He helps take the children to and from school now that he is home. The primary applicant gave evidence that they are raising the children to contribute to the household chores and so the older children also contribute to cleaning and cooking.  The sponsor is recorded as one of the responsible parents of the secondary applicants at their respective schools and he attends school activities as required and if he is able to do so.

23. Consideration of the information and evidence about the nature of the household suggests that the applicants and the sponsor live together as a family and have done since the visa applicants arrived in Australia;  and that they allocate and share household and child care responsibilities between them as necessary and taking into account their caring and work hours in an unremarkable manner. 

    Social aspects of the relationship – including whether 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.

24. Extensive evidence has been provided in support of the social aspects of the relationship.  Supporting statements have been provided from siblings of the primary applicant, friends of the parties, and the uncle of the sponsor all of which provide support for the longevity and social recognition of the relationship.  Many photographs depicting the couple with their children, friends and alone at various family and social functions over several years have been provided. 

25. The primary applicant and sponsor said at hearing that the sponsor’s family have never supported their relationship, because the primary applicant is older than the sponsor, a divorcee and with young children.  The primary applicant was clearly affected by this and expressed sadness that her mother-in-law had not even wanted to meet her granddaughter.   The parties gave evidence that the sponsor’s uncle has provided them with his full support and they are grateful for his help and assistance over the years they have been together.

26. Evidence provided also establishes that the whole family travelled to Vietnam together for one month at the end of 2022 until early 2023, and that they have also holidayed in Queensland and Sydney together.  The primary applicant and the second name review applicant travelled back to Vietnam in June to accompany the body of a relative (Aunt) who died. 

27. Consideration of the information and evidence before me supports a finding that the primary applicant and the sponsor are in an intimate relationship, that they represent themselves as and have socialised as a married couple and with the secondary applicants (and their new child) as a family since 2017. 

    Nature of persons’ commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

28. I accept that the visa applicants and sponsor have lived together now as a family since the applicants arrived in Australia in 2017.  Based on their evidence at hearing, I accept that they provide each other with genuine companionship and emotional support, particularly in managing the disapproval and lack of support they have faced from the sponsor’s mother and brother.  More recently, the primary applicant has returned to work so that the sponsor can take time off to recover from an illness.

29. I accept the evidence from the parties and find that the secondary applicants love rely on the sponsor as their father.   I consider that the decision of the parties to have a child together and to buy their home also reflect a long-term commitment between them to the relationship and to each other. 

    I accept the evidence given by the primary applicant and the sponsor that they love and care for each other and that they each consider that they are committed to a long term and exclusive relationship with each other.  I consider their commitment to each other has been demonstrated over the past six years.

    Any other circumstances of the relationship.

30. As noted above, there is a Non-Disclosure Certificate pursuant to s.376 of the Act on the file, dated 1 April 2019.  The certificate claims that a letter dated 5 June 2017 making allegations against the legitimacy of the relationship here under consideration and the applicant personally as well as a Departmental investigation based on that allegation, should not be disclosed as they may reveal the identity of a confidential source of information.   Troublingly, the existence of this allegation and the information covered by the certificate appears not to have been made known to the primary applicant for her response prior to the delegate making their decision, or at all. 

31. During the hearing, I asked the primary applicant some general questions about her former marriage and her divorce. As noted earlier, she confirmed that she and her former husband had lived separately for more than a year before they divorced and that he moved to Saigon after they separated where he met a new woman and started a new relationship.  It was not an amicable break down of the relationship and divorce. He had been aggressive towards the children before they separated, always arguing with their daughter.  He was gambling and went out a lot leaving them at home though they had young children.  After separation, the court order gave him the right to see the children but he hardly ever did so.  He has also never provided any financial support for the children.  Her daughter has occasional telephone contact with him, and her son will just say hello and not much else.   Their father has never visited them in Australia.

32. I asked the applicant whether she was aware of any people in her home community (in Vietnam) who objected to her relationship with the sponsor, doubted it was genuine or might want to derail her visa application.  She responded that back around the time of her marriage to the sponsor, her brothers told her that members of her ex-husband’s family were saying that she was only marrying the sponsor to get a visa to live in Australia. She spoke to the sponsor about it, because she found it very upsetting, but he reassured her and said that it would all work out, because they knew theirs was a genuine relationship.  As noted above, she also gave evidence that the sponsor’s mother and brother have never accepted her because she is older than the sponsor, and a divorcee with two children.  They have not even wanted to meet Emma. 

33. I also asked the applicant about her parents.  She confirmed that they were in Australia after overstaying their visa in 2010 and that they have never met the sponsor.  They fled Vietnam due to having many debts and they have many enemies.  They have separated themselves from the family.   Even though they are now back in Vietnam, they don’t live in the family home, and don’t have contact with anyone in her family.  The applicant said that even her family in Vietnam don’t know where they are.  When the sponsor came to her home area to meet her family, it was her brothers and sisters and her extended family that he met; and they all supported their relationship and loved the sponsor. 

34. At the conclusion of taking evidence from the primary applicant, I formed a view that I accepted her evidence as frank and reliable.  I consider that there are at least four different potential groups of people who might be motivated due to personal grievance to make a false allegation against her in 2017. Namely, people owed money by her parents, her ex-husband or people associated with him directly, her ex-husband’s extended family still living in the area, and even the sponsor’s own family or relatives.  Although the information covered by the certificate is strictly relevant to the issue under consideration, that is, whether the visa applicant and the sponsor were in a genuine and continuing relationship, I find that due to the age of the allegation and the distinct possibility that there are multiple persons who could have maliciously made an allegation without proof of its’ content in order to affect her visa application, I consider that the allegation is of no probative value.  Consequently, I did not formally put the content of the allegation to the applicant.   

    Conclusion

1. I have considered the various aspects of the relationship as described in regulation 1.15A(3).  I find that the primary visa applicant and the sponsor have a mutual commitment to a shared life to the exclusion of others; that theirs is a genuine and continuing relationship; and that they live together.

2. On the basis of the above the Tribunal is satisfied that the requirements of s. 5CB(2) are met at the time of the visa application and at the time of this decision.  The primary applicant was sponsored at time of application by her spouse, who is an Australian Citizen.  She held a substantive visa.

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

   The secondary applicants

4. At the time of application, the secondary applicants were members of the family unit of the primary applicant and were included in the sponsorship for the visa.  The secondary applicants satisfy cls 820.311(a) and (b).

5. Given my findings above, the appropriate course is to remit the applications for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

   DECISION

6. The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with directions that:

   The first named applicant meets the following criteria for a Subclass 820 (Partner) visa:

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

   ·cl 820.221 of Schedule 2 to the Regulations; and

   The second and third named applicants meet the following criteria for a Subclass 820 (Partner) visa:

   ·cls 820.311(a) and (b) of Schedule 2 to the Regulations.

   Anne Grant
   Member

   
   

   ATTACHMENT - Extract from Migration Regulations 1994

   1.09A     De facto partner and de facto relationship

   (1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.

   Note 1     See regulation 2.03A for the prescribed criteria applicable to de facto partners.
   Note 2     The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
   Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).