Nguyen (Migration)

[2018] AATA 2424

Nguyen (Migration) [2018] AATA 2424 (31 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr NGUYEN Van Thoai

CASE NUMBER:  1614173

DIBP REFERENCE(S):  CLF2016/24757

MEMBER:Shane Lucas

DATE:31 May 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl.801.221(2) of Schedule 2 to the Regulations

Statement made on 31 May 2018 at 4:49pm

CATCHWORDS
Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – Whether a genuine spousal relationship exists – Joint finances – Joint household responsibilities - Significant degree of emotional support and companionship provided – Relationship held out to others – Relationship viewed as continuous and ongoing – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 359AA
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cl 801.221(2)

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 Immigration on 19 August 2016 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 12 February 2013 on the basis of his relationship with the sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 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 cl.801.221(2).

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221(2) because the delegate was not satisfied that the relationship between the applicant and the sponsor was genuine and continuing - and hence, that the applicant was not the spouse of the sponsor as defined under the Act.

4. The Tribunal notes that the delegate drew a “significant inference” from the applicant’s apparent failure to respond to a written invitation on 22 April 2016 to provide comment (within 28 days) on unfavourable information regarding the relationship between the parties. The Tribunal was provided with a written statement – addressed to the delegate and dated 16 May 2016 – in which the applicant responded in detail to the unfavourable information. The applicant’s representative also provided a copy of an email sent to the delegate on 16 May 2016 attaching this written statement; and a copy of a subsequent exchange of emails between a Departmental officer and the representative on 22 and 29 August 2016 in which it is acknowledged that the Department held no record of the information being received.

5. In the context of the “significant inference” drawn by the delegate regarding the applicant’s apparent failure to respond to the invitation of 22 April 2016, the Tribunal will address this issue in the decision to follow.

6. The applicant appeared before the Tribunal on 8 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

7. At the request of the Tribunal, the applicant also provided further documentation on 11 May and 23 May 2018. This information has been considered in the making of this decision.  

8. The applicant was 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 issue to be determined in the present case is whether, at the time of this decision, the applicant is the spouse of the sponsor for the purposes of the Act.

    Whether the parties are in a spouse or de facto relationship

11. Relevant to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who is an Australian permanent resident and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

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; 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 of the relationship; the nature of the visa applicant’s and sponsor’s household; and the parties’ 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?

13. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. In the initial Subclass 820 application, the parties provided a certified copy of a Certificate of Marriage showing the marriage was made in Footscray, Victoria on 29 November 2012. There is nothing to suggest the marriage is not valid. 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?

14. The applicant provided oral evidence and documentation to the Tribunal that was not available to the delegate. The Tribunal also received oral evidence from the sponsor.

    Financial aspects of the relationship

15. The applicant provided the Tribunal with documentation attesting to the couple’s financial arrangements. The material included documentation attesting to the couple’s joint account with the Commonwealth Bank; utility bills in joint or individual names regarding the couple’s rented residences in Bowen, Queensland and Mildura, Victoria; superannuation account documentation in joint names from AustralianSuper; and miscellaneous receipts and bills attesting to the couple’s day-to-day expenses.

16. The Tribunal also received oral evidence from the applicant and sponsor regarding the approach the couple take to sharing their incomes and acquitting their weekly household expenses. The applicant stated that the sponsor is in receipt of an aged pension paid into a personal account with the Commonwealth Bank; whereas the moneys the applicant receives from seasonal jobs are paid directly into the couple’s joint account. The couple do not own a home or have other major assets.

17. On consideration of the evidence, the Tribunal finds that the couple have pooled their financial resources in relation to the sharing of day-to-day household expenses, but do not have the capacity to make any major financial commitments. The Tribunal finds no evidence of joint ownership of property or other major assets; and no evidence that the parties have joint liabilities or that one person in the relationship owes any legal obligation in respect of the other.

18. The Tribunal notes that the couple are of advancing age (the applicant is 60 years old; the sponsor is 68 years old) and that they have a somewhat itinerant lifestyle, moving every six months between regional Victoria and regional Queensland, and working in low-paid seasonal jobs. The sponsor receives an aged pension and the couple lived in Government housing in Mildura for a period after November 2014, before leaving public rental due to their regular movement between States. In this regard, the Tribunal gives little weight to some aspects of the financial relationship between the parties, as the couple is not in a position to have or make significant financial commitments.

19. On the basis of the evidence before it, the Tribunal is satisfied that the financial aspects of the relationship as they pertain to the couple’s pooling of their limited resources, and the sharing of day-to-day household expenses, attest to the genuine and continuing spousal relationship between the parties.

    Nature of the household

20. The applicant and sponsor provided oral evidence regarding their living arrangements in Mildura and Bowen. In response to a request from the Tribunal, the applicant also provided a written statement subsequent to the hearing detailing the frequently changing nature of the couple’s household as they move regularly between Victoria and Queensland for the applicant’s seasonal work.

21. On the basis of the evidence before it, the Tribunal is satisfied that the couple live together and share responsibility for housework, cooking and other domestic duties. The Tribunal is satisfied that the parties have established a joint household, noting that the couple have lived in several different properties including public housing, a caravan park, and properties in Bowen belonging to the applicant’s employer. The Tribunal found no evidence of any joint responsibility for the care and support of children.

22. The Tribunal is satisfied that the nature of the parties’ household attests to the genuine and continuing spousal relationship between the parties.

    Social aspects of the relationship

23. The Tribunal considered several statutory declarations from third parties attesting to the genuine and continuing nature of the couple’s relationship. These declarations were provided to the Department for the purposes of the initial Subclass 820 application (approved on 23 February 2013) and provide no insight regarding the present social aspects of the relationship between the parties. Accordingly, the Tribunal gives these declarations little weight.

24. The Tribunal also received photographic evidence attesting to the couple’s social life with a network of friends in Australia, and their interactions with friends and family members in Vietnam on return visits together to their country of origin in October-November 2013, November-December 2016 and October-November 2017.  These photographs appear casual and informal, and principally show the parties sharing meals with members of their respective families.

25. The Tribunal also received oral and photographic evidence regarding the sponsor’s most recent trip to Vietnam between December 2017 and March 2018. The applicant stated that the principal purpose of the sponsor’s extended trip was to help care for his elderly mother, who has suffered a severe stroke. The applicant claimed that other family members in Vietnam were unable to provide the constant care to his mother that she requires, and that his wife therefore volunteered to do so. In oral evidence and in a further written statement to the Tribunal dated 11 May 2018, the sponsor stated:

    “On my last trip to Vietnam, from 18/12/2017 to 15/03/2018, I had travelled back to Vietnam to be with my mother-in-law. She is incredibly ill now and my relationship with her has always been that of close in nature… When I was back there, I would stay with my mother-in-law at my brother-in-law’s house. I would reside here on most days, but will occasionally walk to my son’s house, which is only a few hundred metres away. When I am back there, I would help with washing of clothes, cooking, help with bathing my mother-in-law and assisting her with sitting up and lying down, as she is too weak to move around on her own.”

26. The applicant gave oral evidence expressing his gratitude for the support his wife has provided to his mother, and noting that there have been sensitive tasks undertaken by his wife (i.e., bathing his mother) that his mother would not have permitted he or his brother to do.

27. On the basis of the evidence, the Tribunal is satisfied that the persons represent themselves to others as being married to each other, and that the couple plan and undertake joint social activities. The Tribunal is also satisfied that the relationship is viewed as genuine and continuing in the opinion of the couple’s family members, friends and acquaintances.

28. 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

29. The parties first met in September 2010 in Vietnam, having been introduced by a mutual friend. The sponsor was at that time living in Vietnam for some six months. Toward the end of this extended stay, the parties met again in February 2011. They claim to have commenced a personal relationship in October 2011, when the sponsor was again in her country of origin for some six months between October 2011 and April 2012. The applicant proposed marriage in October 2012 and travelled to Australia on a Prospective Marriage (Temporary) (Class TO) visa on 29 November 2012. The couple married on the day of the applicant’s arrival in Australia and travelled to Mildura for a wedding celebration with the sponsor’s family and friends. The applicant lodged an application for a Partner (Temporary) (Class UK) visa on 12 February 2013, and that visa was granted on 23 February 2013. The couple have continued to live together in the five-and-a-half years since their marriage at various properties in Mildura, Victoria and Bowen, Queensland.

30. The couple provided the Tribunal with frank and credible oral evidence regarding their relationship, demonstrating substantial knowledge about each other’s personal histories, habits, character, family arrangements, current circumstances and future aspirations. The couple gave credible evidence regarding their relationship, and in response to questions from the Tribunal, the applicant spoke with some emotion in describing his concerns for the sponsor’s physical health as she approaches 70 years of age; and in expressing his gratitude for the care and support the sponsor provided to his elderly mother in Vietnam after she suffered a severe stroke.

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 November 2012. The Tribunal is also satisfied 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.

32. The Tribunal is satisfied that the nature of the persons’ commitment to each other attests to the genuine and continuing spousal relationship between the parties.

    Other matters for consideration

33. As stated above, the Tribunal notes that the delegate drew a “significant inference” from the applicant’s apparent failure to respond to a written invitation on 22 April 2016 to provide comment on unfavourable information regarding the relationship between the parties. The unfavourable information concerned was outlined in the delegate’s decision record and pertained principally to inconsistent answers provided by the applicant at interview on 22 April 2016.

34. Pursuant to s.359AA of the Act, the Tribunal put the unfavourable information to the applicant during the course of the hearing on 8 May 2018. In response, the applicant’s representative submitted the aforementioned written statement – addressed to the delegate and dated 16 May 2016 – in which the applicant responded to the unfavourable information. As stated above, the applicant’s representative also provided a copy of an email sent to the delegate on 16 May 2016 attaching this written statement; and a subsequent exchange of emails between a Departmental officer and the representative on 22 and 29 August 2016 in which it is acknowledged that the Department held no record of the information being received.

35. In the context of the “significant inference” drawn by the delegate regarding the applicant’s apparent failure to respond to the invitation of 22 April 2016, the Tribunal notes that the applicant’s written statement addressed the unfavourable information. The Tribunal is satisfied that the issues raised by the delegate (i.e. the applicant’s knowledge of the sponsor’s children; the whereabouts of the applicant and sponsor at the time of the interview with the delegate on 22 April 2016; and the couple’s plans at that time to have a brief holiday while in Queensland) were addressed in the applicant’s written statement of 16 May 2016 and confirmed by the parties’ oral evidence to the Tribunal.

36. Accordingly, the Tribunal gives the unfavourable information before the delegate no weight in determining this application or considering the nature of the relationship between the parties. Moreover, the Tribunal notes with concern that the delegate drew a “significant inference” from the applicant’s apparent failure to respond to this information at the time of decision, whereas it is documented that the response was provided to the Department.

37. Having regard to all the circumstances of the relationship, the Tribunal is satisfied that the requirements of s.5F(2)(a) - (d) are met at the time of this decision. Therefore the applicant meets cl.801.221(2).

    Conclusion

38. 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 801 visa.

    DECISION

39. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

    ·cl.801.221(2) of Schedule 2 to the Regulations

    Shane Lucas
    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).