Nguyen (Migration)

[2018] AATA 2624

Nguyen (Migration) [2018] AATA 2624 (8 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr NGUYEN Tri Nhan

VISA APPLICANT:  Ms HUYNH Nhu Thuong

CASE NUMBER:  1619503

DIBP REFERENCE(S):  OSF2016/039108

MEMBER:Shane Lucas

DATE:8 June 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211 of Schedule 2 to the Regulations; and

·cls.309.221 and 309.223 of Schedule 2 to the Regulations

Statement made on 08 June 2018 at 3:29pm

CATCHWORDS
Migration – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional) visa – Genuine spousal relationship – Visa applicant lives in Vietnam – Review applicant visits for extended periods of time – Financial aspects – Hospitality business – Shared responsibility for day to day expenses when together – Review applicant ‘principle breadwinner ‘ – Evidence of financial transfers – Credible witness – Not living separately and apart permanently – Decision under review remitted for reconsideration

LEGISLATION
Migration Act 1994 (Cth), ss 5F, 65
Migration Regulations 1994(Cth), r 1.15A Schedule 2 cls 309.211, 309.221, 309.223

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 10 November 2016 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a Vietnamese national born on 12 December 1979. She applied for the visa on 29 January 2016 on the basis of her relationship with the sponsor (“the review applicant”). At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Relevant to this matter, the primary criteria include cls.309.211, 309.221 and 309.223.

3. The delegate refused to grant the visa on the basis that the visa applicant did not meet the requirements of cls.309.211(2) and 309.221 in Schedule 2 of the Regulations, as the delegate was not satisfied that the visa applicant was in a genuine and continuing spousal relationship with the review applicant. The delegate considered that the information and evidence submitted in support of the application was not sufficient to demonstrate that the visa applicant was the spouse of the sponsor, as defined under s.5F of the Act.

4. The review applicant seeks review of the delegate’s decision.

5. The review applicant appeared before the Tribunal on 16 May 2018 to give evidence and present arguments. The Tribunal also sought oral evidence from the visa applicant in Vietnam, however it was not possible to sustain an audible telephone connection.

6. Accordingly, the Tribunal wrote to the review applicant on 17 May 2018 inviting the visa applicant to provide a Statutory Declaration (within 14 days) regarding the following aspects of the relationship between the parties:

   ·     The financial aspects of the relationship, specifically the extent of any pooling of financial resources between the review applicant and the visa applicant;

   ·     The nature of the parties’ household, specifically the living arrangements of the persons;

   ·     The social aspects of the relationship, specifically whether the persons represent themselves to other people as being married to each other; and any basis on which the persons plan and undertake joint social activities; and

   ·     The nature of the persons’ commitment to each other, specifically the degree of companionship and emotional support the review applicant and the visa applicant draw from each other; and whether the persons see the relationship as a long term one.

7. Additional documentation including a Statutory Declaration made by the visa applicant on 23 May 2018 was provided to the Tribunal on 24 May 2018. This evidence was also considered in the making of this decision.

8. The parties were represented in relation to the review by a registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issues in the present case are whether the visa applicant was the sponsor’s spouse for the purposes of the Act at the time of application (cl.309.211); whether at the time of decision, the visa applicant continues to satisfy the criterion in cl.309.211 (cl.309.221); and whether at the time of decision, the visa applicant continues to be the spouse of the sponsor (cl.309.223).

    Relevant law

11. ‘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 the circumstances of the relationship. This includes evidence of the financial and social aspects, the nature of the parties’ household, and their commitment to each other as set out in r.1.15A(3).

    Are the parties validly married?

12. If the parties are validly married, they may meet the requirements of a spousal relationship. The applicants provided the Tribunal with a certified copy (and accompanying accredited translation) of a Certificate of Marriage showing the marriage was made in Tra Vinh Province, Vietnam on 15 October 2015 and recorded in the Marriage Registration Book on 19 October 2015. There is nothing to suggest the marriage is not valid. The Tribunal is satisfied on the evidence that 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).

    Whether the parties are in a spouse or de facto relationship

13. Clauses 309.211 and 309.221 require that at the time the visa application was made, and at the time of this decision, the first-named visa 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 visa applicant claims to be the spouse of the review applicant. The parties provided documentation attesting that the review applicant (born in Dong Thap Province, Vietnam on 15 May 1975) became an Australian citizen on 22 February 1996. Accordingly, the review applicant satisfies the requirements of cl.309.211(2)(a).

    Are the other requirements for a spousal relationship met?

14. The review applicant provided documentation and oral evidence to the Tribunal that was not available to the delegate. The Tribunal considered this evidence in making the following findings:

    Financial aspects of the relationship

15. The parties provided the Tribunal with documentation and oral evidence regarding the couple’s financial arrangements. The couple do not maintain a joint bank account and the visa applicant lives with her parents in Tra Vinh Province when the review applicant is not in Vietnam. When the review applicant is in Vietnam for extended periods, the couple reside together in Ho Chi Minh City above a café and billiards hall which the review applicant maintains as a business. At these times, the couple share responsibility for day-to-day expenses, however the review applicant is the principal breadwinner in the relationship.

16. In her Statutory Declaration dated 23 May 2018, the visa applicant provided a concise summary of her present circumstances, including the ongoing financial support she receives from the review applicant:

    “I currently live with my parents whenever my husband is not in Vietnam. I help with the gardens and provide care at home to earn some income to help my parents. My husband provides me with [an] additional 3 to 5 million dongs [approximately AUD 200 to 300] per month for my daily and other living expenses. Occasionally while my husband is in Australia, he sends me money in the Australian or Vietnamese currency if I need it. I also try to save money to hopefully be less of a burden on my husband.”

17. The review applicant gave frank and credible oral evidence confirming his monthly financial transfers to the visa applicant, and noting also that his wife assists him to manage the café and billiards hall when he is in Vietnam. In response to questions from the Tribunal, the review applicant stated that the visa applicant does not have a “financial stake” in the business. The Tribunal was provided with no additional evidence regarding the financial aspects of the relationship between the parties.

18. On consideration of the evidence, the Tribunal finds that the parties have shared some day-to-day expenses when residing together; however, the Tribunal finds no evidence that the couple have pooled their financial resources in a meaningful way or in relation to major financial commitments. The Tribunal found no evidence of any joint ownership of real estate or other major assets, or joint liabilities. The Tribunal also found no evidence that either party owes any legal obligation in respect of the other.

19. Given the constraints of residing in separate countries however, the Tribunal accords little weight to the financial aspects of the relationship in this case.

    Nature of the household

20. The Tribunal received documentation and oral evidence regarding the review applicant’s several trips to Vietnam since meeting the visa applicant in October 2014. The review applicant has returned to Vietnam to live with the visa applicant (and to operate his business) on some five occasions, being July-August 2015 (three weeks); September 2015-March 2016 (six months, during which time the parties held their wedding celebration and the review applicant purchased the café and billiards hall); May-August 2016 (three months); September-November 2016 (two months); and September-November 2017 (two months). Since the purchase of the business, the couple have resided at that location in Ho Chi Minh City when the review applicant is in Vietnam. In a written statement dated 26 December 2015, the review applicant explained his motivations in purchasing the business:

    “On 8 September 2015, I came back to Vietnam again. As I wanted to prepare for a stable life for both of us, I bought a café billiard shop in Binh Than District so [the visa applicant] could have an income to live on while waiting for her migration paperwork to get through. [The visa applicant] helped me to look after the shop and cook for me everyday.”

21. In oral evidence, the review applicant described the building as having ten residential rooms above the café and billiards hall (six of which the review applicant rents out to others) while the remaining rooms are maintained as a residence by the couple. The Tribunal also received photographic evidence showing the physical lay-out of the building. In her Statutory Declaration of 23 May 2018, the visa applicant confirmed the couple’s living arrangements when together in Vietnam:

    “After getting married, my husband [the review applicant] and I live together in Saigon and operate a business which is a billiards room. [The review applicant] runs the business for the entire day while I help with the odd tasks such as cooking, washing and cleaning. My husband sometimes helps me with these tasks. For the future, my husband and I plan that we will lease a small home when we move to Australia and we will save money to purchase our own home.”

22. The parties provided frank and credible oral and documentary evidence regarding the periods of time they have lived together since October 2015. The Tribunal is therefore satisfied that the parties have resided together for some 13 months since their marriage. The Tribunal finds that the parties have established a household at these times, and that the couple have shared responsibility for housework and domestic duties. The Tribunal finds no evidence that the couple have any joint responsibility for the care and support of children.

23. On the basis of the evidence, the Tribunal is satisfied that the nature of the person’s household attests to the genuine and continuing spousal relationship between the parties.

    Social aspects of the relationship

24. The Tribunal received written statements and Statutory Declarations regarding the genuine and continuing nature of the couple’s relationship from several members of the parties’ friendship networks in Vietnam and Australia. The written documentation includes a joint statement from four friends and relatives of the visa applicant who attended the couple’s wedding celebration at the visa applicant’s parents’ home in Tra Vinh Province on 15 November 2015 (some four weeks after they signed the marriage papers with the Vietnamese authorities) confirming the genuine and continuing nature of the relationship between the parties.

25. In oral evidence and in a written statement provided to the Tribunal on 8 May 2017, the review applicant stated that his own relatives have little knowledge of his relationship with the visa applicant as he is somewhat estranged from his immediate family:

    “I am now 41 years of age, running my own business, making my own decisions like an adult normally do. In the last four years, I have not talked to my father due to an argument and different points of view. We just simply cannot talk. I only talk to my mother over the mobile phone sometimes or maybe just once every two or three or four months. I have a younger brother and a younger sister, and both of them have got their own busy life, so we do not see each other much and rarely contact each other. Maybe once phone call per year to say happy birthday.”

26. The Tribunal also received photographic evidence showing the couple – together and/or in the company of others - on formal and informal occasions, including their wedding celebration in November 2015. The informal photographs provided appear spontaneous and casual, and show the couple engaging in social activities at restaurants in Ho Chi Minh City; at the review applicant’s café and billiards room; and shopping together during the review applicant’s several extended stays in Vietnam between 2015 and 2017.

27. On consideration of the evidence, the Tribunal finds that the persons represent themselves to other people as being married to each other, and that the couple’s friends and acquaintances regard the relationship as a genuine and continuing one. The Tribunal also finds that the couple plan and undertake joint social activities, within the context of principally residing in separate countries. The Tribunal is therefore satisfied that the social aspects of the relationship attest to the genuine and continuing spousal relationship between the parties.

    Nature of the person’s commitment to each other

28. The Tribunal received documentation and oral evidence stating that the couple first met in Ho Chi Minh City on 11 October 2014 having been introduced at a dinner arranged by a gentleman whom the review applicant was meeting to discuss a business opportunity. The review applicant stated that he drank too much alcohol on the evening in question, and that the visa applicant returned him to his accommodation on her motorbike. The review applicant asked for the visa applicant’s telephone number and contacted her two days later. Over the next two weeks, the couple’s relationship developed rapidly. In oral evidence, the review applicant stated that the couple were physically intimate at that time, prior to his return to Australia on 24 October 2014.

29. The parties continued to talk on the telephone over the next several months. In his written statement dated 26 December 2015, the review applicant provided a frank and credible account of his early communications with the visa applicant:

    “… I returned to Australia and I kept contacting [the visa applicant] on the phone. As I had separated [from] my previous de facto partner [name withheld by the Tribunal] for more than one year and lived away from my two children… I was very sad. I talked to [the visa applicant] and she was very supportive to me. I realised that I really needed a caring person like her. [The visa applicant] also had special feelings for me.”

30. The review applicant claims that he proposed marriage to the visa applicant in July 2015 and that he returned to his country of origin promptly after she accepted his proposal, arriving on 1 August 2015. As indicated above, the parties were subsequently married in Tra Vinh Province in October 2015, first signing the marriage documentation, and then holding a wedding celebration at the visa applicant’s parents’ home on 15 November 2015. In oral evidence, the review applicant demonstrated substantial knowledge about the visa applicant’s personal history, habits, character, family arrangements, and current circumstances. The review applicant also spoke of the emotional support and companionship the couple provide each other. In her Statutory Declaration of 23 May 2018, the visa applicant stated:

    “My husband and I are very compatible with each other. He always cares about me and reminds me to eat and to look after my health. I am really worried for my husband as he forgets to eat while working. On many occasions, I have to bring the food to him in order for him to remember to eat. We communicate very well. He always listens when I talk and I really love this man as he cares for me and for the family. When I am unwell, he purchases medicine and gets water for me without being asked to. I am a really lucky wife.”

31. On consideration of the evidence, the Tribunal is satisfied regarding the duration of the relationship and the length of time the couple have lived together (and not lived separately and apart) since their marriage in October 2015. The Tribunal also finds that the persons draw on each other for a significant degree of companionship and emotional support, and that they view their relationship as a long term one. The Tribunal is therefore satisfied that the nature of the persons’ commitment to each other attests to the genuine and continuing spousal relationship between the parties.

32. Having regard to all the circumstances of the relationship, the Tribunal is satisfied that when the application was made and at the time of this decision, the visa applicant and the review applicant had a mutual commitment to a shared life to the exclusion of others. The Tribunal is satisfied that the couple’s relationship is genuine and continuing. The Tribunal is satisfied that the visa applicant and the review applicant have lived together (and are not living separately and apart on a permanent basis) and have a shared commitment to a future as a married couple.

33. On the basis of the above, the Tribunal is satisfied that the requirements of s.5F(2)([a]-[d]) are met at the time the visa application was made and at the time of this decision. Therefore the visa applicant meets cls.309.211(2)(a), 309.221 and 309.223.

    Conclusion

34. Given the findings above, the appropriate course is to remit the application for a visa to the Minister to consider the remaining criteria for grant of a Subclass 309 visa.

    DECISION

35. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.211 of Schedule 2 to the Regulations; and

    ·cls.309.221 and 309.223 of Schedule 2 to the Regulations.

    Shane Lucas
    Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (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).