Nguyen (Migration) - [2018] AATA 1670

Nguyen (Migration) [2018] AATA 1670 (23 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Anh Vinh Nguyen
CASE NUMBER:  1618621
DIBP REFERENCE(S):  CLF2013/80327
MEMBER:Meena Sripathy
DATE:23 May 2018
PLACE OF DECISION:  Sydney
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 apart from the criterion that the applicant hold a Subclass 820 visa.

Statement made on 23 May 2018 at 1:18pm
CATCHWORDS
Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) visa – Genuine and continuing relationship – Further updated evidence submitted to the Tribunal – Co-habitation – Living at the same address since 2012 with the Sponsor’s son – Joint account used to pay for living expenses – Sponsor owns the house – Parties work together – Presented to official bodies as a married couple – Plan to have further children – Decision under review remitted
LEGISLATION
Migration Act 1958 ss 5F, 65
Migration Regulations 1994 r 1.15A Schedule 2 cl 801.221
CASES
MILGEA and Dhillon [1990] FCA 144
Garcevic v MIAC [2012] FMCA 931
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 17 October 2016 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 12 April 2013 on the basis of his relationship with his 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). Relevantly to this matter the primary criteria include cl.801.221. The applicant was granted a Subclass 820 (Partner Temporary) Class UK visa on 6 June 2014.
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221 because the delegate was not satisfied that the applicant and sponsor were, at time of decision, in a genuine and continuing spousal relationship.
The applicant appeared before the Tribunal on 5 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and from Ann Ho Chau, a family friend of the applicant and sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The review applicant is a 37 year old…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nguyen (Migration)

Details

AGLC: Nguyen (Migration) [2018] AATA 1670
Case: [2018] AATA 1670
Decision Date: 23 May 2018

CaseChat Overview and Summary

This matter concerned an application for a Partner (Residence) (Class BS) visa, subclass 801, by a 37-year-old Vietnamese national. The applicant sought review of a decision by the Migration Review Tribunal. The sponsor was a 48-year-old Australian citizen. The applicant and sponsor met on Christmas Day 2012 and married on 12 January 2013. Evidence submitted included a marriage certificate, statutory declarations from the parties and a friend, joint bank account statements, utility bills, and photographs.

The Tribunal was required to determine whether the applicant had demonstrated a genuine and continuing relationship with the sponsor, considering various aspects of their relationship as outlined in subregulation 1.15A(3) of the Migration Regulations 1994. These aspects included financial matters, the nature of their household, social interactions, and the nature of their commitment to each other. The Tribunal also needed to consider the applicant's eligibility for the subclass 801 visa, which requires holding a subclass 820 visa.

The Tribunal reasoned that the evidence, including statements about cohabitation since 2012, shared living expenses through a joint account, joint ownership of assets (the sponsor owned the home), working together, presenting as a married couple, and plans for future children, collectively indicated a genuine and continuing relationship. The Tribunal noted that the applicant had been living with the sponsor and her son since 2012, managed household chores, and provided care and emotional support, particularly following the sponsor's surgery. The Tribunal concluded that the applicant met the criteria for the subclass 801 visa, with the exception of holding a subclass 820 visa.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria under cl.801.221(2) of Schedule 2 to the Regulations, apart from the requirement to hold a subclass 820 visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The review applicant is a 37 year old man of Vietnamese nationality. He has parents and one brother in Vietnam. He indicates no previous marriages or de facto relationships. In the Form 47SP application form he claims to have met the sponsor on Christmas day in 2012, and they married on 12 January 2013. The sponsor is a 48 year old Australian citizen by grant, having arrived in Australia in 1998. She has parents and 5 siblings in Vietnam. She was previously married to Van Anh Do from 2008 to 2010, and this relationship ended in divorce. Various documents and supporting evidence was submitted with the application, including undated written statements from the applicant and sponsor, a divorce certificate in respect of the sponsor’s previous marriage; a marriage certificate relating to the applicant and sponsor’s marriage on 12 January 2013; letters dated 8 October 2012 and April 2013 from sponsor’s medical practitioners relating to her health condition and support/care from the applicant referred to as her partner; photos of the parties together; various utility and telephone bills in joint names during 2014; receipts addressed to the parties for various items; Statutory Declaration Form 888 from Ann Chau and her husband Cong Duc Huynh dated April 2015; CBA account statement for an account in joint names for the period July –December 2014; Sponsor’s CBA account statement and Statutory Declarations from the applicant and sponsor dated 20 April 2015; drivers licenses showing the same residential address. The Statutory Declaration from the applicant states that they have been living together for over 2 years, they work together at the same place, full time. They have a joint account which they use to pay for all their expenses including groceries, fuel and other expenses. The sponsor gives him extra cash as needed each week. As a result of the sponsor’s [surgery] in July 2012, the applicant does most chores at home. She does most of the cooking and he does the preparation and washing and cleaning. They hardly go out because they work so much. They support each other emotionally and financially. He looks after the sponsor when she is sick. When she had [an] operation he had to postpone his studies to look after her. He cared for her and also went to work in this period. [Sentence deleted]. They are always together and support and love each other. The Statutory Declaration from the sponsor states that she owns a [business] at [a location] and they both work there full time. They transfer most of the profits into the joint bank account. She bought a 2 bedroom unit in [a suburb] before she met the applicant and has a mortgage on this property which is paid from a [bank] account at [amount] per month. In July 2012 she had [an] operation and since then the applicant has taken responsibility for most of the household duties. The applicant prepares food and she cooks it, he cleans, except for the bathroom. Her adult son lives with them. They are together most of the time. They do not go out much because of her ill health. The applicant takes her to the doctors and helps her with her medication. They are committed to each other. The applicant has supported her when she is sick and supports her emotionally. The time of her [operation] was very stressful [but] they got through this time together.

Decision

Reasons for decision

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 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 apart from the criterion that the applicant hold a Subclass 820 visa.Meena SripathyMemberATTACHMENT - Extract from Migration Regulations 19941.15A 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).

Ratio Decidendi

Legal Principle Established

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 apart from the criterion that the applicant hold a Subclass 820 visa.Meena SripathyMemberATTACHMENT - Extract from Migration Regulations 19941.15A 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).