NGUYEN (Migration)

[2018] AATA 2114

NGUYEN (Migration) [2018] AATA 2114 (6 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Quynh Lan Nguyen

CASE NUMBER:  1704891

DIBP REFERENCE(S):  CLF2012/256443

MEMBER:Mary Urquhart

DATE:6 June 2018

PLACE OF DECISION:  Melbourne

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.820.211of Schedule 2 to the Regulations

·cl.820.221 of Schedule 2 to the Regulations.

Statement made on 06 June 2018 at 12:15pm

CATCHWORDS
Migration – Federal Circuit Court remittal – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) visa – Genuine relationship – Joint finances – Shared household – Social aspects – Photographic evidence provided – Practice and Procedure – Decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958, ss 5CB, 5F, 65, 360
Migration Regulations 1994, rr 1.15A, 1.09A Schedule 2 cl 820.211, 820.221

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 30 April 2015 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 Ms Thi Quynh Lan Nguyen applied for the visa on 31 December 2012 on the basis of her relationship with her sponsor, Mr Van Son Nguyen. 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 because the delegate was not satisfied that the applicant was the spouse of the sponsor or that the applicant met any of the limited alternative requirements for the grant of the visa.

4. On 24 June 2016 the Tribunal affirmed the decision of the department. The applicant sought Judicial review.

5. On 7 March 2017 the Federal Circuit Court set aside the Tribunal's decision and remitted the matter back to the Tribunal for reconsideration and is now before the Tribunal differently constituted.

6. The applicant was represented in relation to the review by her registered migration agent.

7. Prior to the hearing on 6 June 2018 the Tribunal received a detailed further submission dated 11 May 2018 in support of the application. The submission included extensive material set out at folio 394 of the Tribunal file Part 2.

8. The submission has been carefully considered together with all the evidence.

9. Section 360 (1) of the Act requires the Tribunal to invite the applicant to appear before it to give evidence and present arguments. Section 360 (2) (a) provides that subsection (1) does not apply if the Tribunal considers that it should decide a review in the applicant’s favour on the basis of material before it. As the Tribunal considered that it should decide the review in the visa applicant's favour on the basis of the evidence it was therefore unnecessary to proceed with a Tribunal hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The main issue in the present case is whether the applicant is the spouse, as defined, of her sponsoring partner.

12. The applicant Ms Nguyen was born on 6 May 1979. She is a national of Vietnam. She first arrived in Australia as the holder of a Subclass 573 Student visa valid until 18 March 2014.

    Whether the parties are in a spouse or de facto relationship

13. 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.

14. Section 5F of the Act defines the term 'spouse'. 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). Additionally, the Tribunal must be satisfied that the couple have a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship is genuine and continuing, and that they live together, or do not live separately and apart on a permanent basis: s.5F(2)(b)-(d).

15. In forming an opinion whether two persons are in a married or de facto relationship, the Tribunal must consider all the circumstances of the relationship, including the matters in r.1.15A(3) for spousal relationships and r.1.09A(3) for de facto relationships. Those matters relate to the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the persons' commitment to each other.

    Are the parties validly married?

16. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The parties married on 20 May 2012 and have provided a marriage Certificate. 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?

    Financial aspects of the relationship

17. The Tribunal has considered the evidence of financial dealings including bank statements. There is evidence that under the government housing arrangement governing the parties’ accommodation a regular amount of money is paid to the relevant government body from which rent and utilities are paid. The Tribunal accepts this arrangement has bearing on the lesser number of banking transactions recorded in their joint account than might be expected in regard to paying for rent and utilities. The Tribunal accepts the parties draw cash from their joint account to pay for other necessities. The Tribunal accepts the applicant and sponsor’s evidence that they do not have an extravagant lifestyle and that they try to live within their means. The Tribunal is satisfied that the parties share joint financial arrangements such as to indicate a genuine and ongoing spousal relationship.

    Nature of the household

18. The Tribunal has carefully assessed the applicant and sponsor’s living arrangements. The Tribunal is satisfied that the parties have established and maintained a shared household at the time of application and continue to do so at the time of this decision. The Tribunal accepts that the applicant and sponsor have lived together in government housing in Highett St Richmond since the date of their marriage in May 2012.The Tribunal accepts that the applicant is primarily responsible for household chores and that this situation has developed due to the sponsor’s deteriorating health.

19. The Tribunal accepts that the household arrangements support a genuine and ongoing spousal relationship.

    Social aspects of the relationship

20. The Tribunal accepts the parties represent themselves to family, friends, neighbours and the wider community- including doctors and health service people, as being in a married relationship. In so finding the Tribunal gives weight to photographic evidence and to the numerous statements and declarations submitted in support of the genuine and ongoing relationship between the parties.

    Nature of persons' commitment to each other

21. The applicant and sponsor met in December 2009.They became engaged on 6 May 2011 and married on 20 May 2012 in Fitzroy, Melbourne. They have been married for some 6 years. They commenced living together after they married and have lived at the same address in Richmond since May 2011. There is plausible material before the Tribunal in relation to the inception, development of and length of the parties' relationship. The Tribunal accepts the evidence that the parties provide support and companionship to each other and have done so and continue to do so in good times and difficult times.

22. On the basis of the evidence the Tribunal is satisfied the parties have a mutual commitment to a shared life together to the exclusion of all others, that the relationship is genuine and continuing and that the parties do not live separately and apart on a permanent basis.

23. The Tribunal is satisfied that the requirements of s.5CB (2) are met at the time of application. Therefore the applicant meets cl.820.211. The Tribunal is satisfied that the applicant continues to meet the requirements of cl 820.211(2) at the time of decision and according meets cl.820.221 requires

24. 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

25. 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 of Schedule 2 to the Regulations

    ·cl.820.221 of Schedule 2 to the Regulations

    Mary Urquhart
    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 sub regulation (3).

    (3)The matters for sub regulation (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 sub regulation (2), the Minister may consider any of the circumstances mentioned in sub regulation (3).