Nguyen (Migration)

[2017] AATA 2839

Nguyen (Migration) [2017] AATA 2839 (22 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Thi Yen Kim Nguyen

CASE NUMBER:  1615532

DIBP REFERENCE(S):  CLF2013/106518

MEMBER:K. Chapman

DATE:22 December 2017

PLACE OF DECISION:  Brisbane

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 22 December 2017 at 1:42pm

CATCHWORDS
Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – Entwining of financial affairs – Live together in an extended family setting – Engage in social activities – Loving interaction at the hearing

LEGISLATION
Migration Act 1958, s 5F, 65, 359(2)
Migration Regulations 1994, r 1.15A, Schedule 2, cl 802.221

CASES
Jayasinghe v MIMA [2006] FCA 1700

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 14 September 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, Mrs Thi Yen Kim Nguyen, applied for the visa on 15 May 2013 on the basis of the relationship with her sponsor, Mr Minh Tri Nguyen. 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. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Relevantly 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 she failed to provide adequate information in support of the relationship and was assessed not to be in a continuing genuine spousal relationship with the sponsor. On 23 September 2016, the applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with her application. On 17 July 2017, the Tribunal wrote to the applicant through her registered migration agent pursuant to subsection 359(2) of the Act, inviting her to provide further information in support of her claims that she and the sponsor are in a spouse or de facto relationship. In response the Tribunal received information including written submissions, Statutory Declarations, a Queensland Marriage Certificate, medical reports, financial records, photographs and a Queensland Birth Certificate for an Australian citizen child of the relationship. The Tribunal has duly considered the aforementioned material.

4. The applicant appeared before the Tribunal on 18 August 2017, and at a resumed hearing on 14 December 2017, to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and the sponsor’s parents, Mr Minh Ngoc Nguyen and Mrs Chin Thi Nguyen. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. At the review hearings the applicant was represented by her registered migration agent.

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

   BACKGROUND

6. The applicant, Mrs Nguyen, is a 28 year old national of Vietnam. She first arrived in Australia on 10 September 2009 as the holder of a Subclass 573 Student visa. According to the Partner visa application and material in support, Mrs Nguyen met Mr Nguyen in Australia in 2011, they married in Queensland on 30 March 2013, lived together at the sponsor’s parents’ house, and their daughter was born on 29 December 2013 in Queensland (and is an Australian citizen by birth). On 15 May 2013, Mrs Nguyen made a combined Subclass 820 and 801 visa application on the basis of the relationship with Mr Nguyen, who is 38 years old and is an Australian citizen. On 2 May 2014, the Departmental delegate granted Mrs Nguyen a Subclass 820 Partner visa. As previously indicated, on 14 September 2016 the Departmental delegate refused Mrs Nguyen’s application for a Subclass 801 Partner visa and on 23 September 2016 she applied to the Tribunal for review of that decision. At the time of this decision, Mr and Mrs Nguyen are living together with their daughter at Mr Nguyen’s parents’ residence in Queensland.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. There is a two stage process for Partner visas. An applicant must first hold a provisional visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a permanent visa. The grant of a permanent visa would generally depend on whether the relationship has continued for a period of at least two years. The issue in the present case is whether the applicant is at the time of the making of this decision the spouse of the sponsor.

   Whether the parties are in a spouse or de facto relationship

8. Relevantly 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 citizen 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.

9. ‘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 husband and wife 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 as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and sponsor’s household and their 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?

10. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The applicant enclosed with her visa application a Queensland marriage certificate indicating she married the sponsor in Queensland on 30 March 2013. 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?

11. In assessing whether the applicant and sponsor are in a spousal relationship at the time of this decision, the Tribunal has considered the documentary evidence submitted with the primary application, additional documentary evidence that was provided to the Tribunal and the oral evidence given during the review hearing. Having regard to the principles outlined in the decision of Jayasinghe v MIMA [2006] FCA 1700, the Tribunal has had regard to later events as they tend logically to show the existence of prior facts. The Tribunal also observes this is a matter where the applicant submitted limited documentary evidence in support of her visa application to the Department of Immigration and then furnished the Tribunal with very extensive evidence that was unavailable to the primary decision maker.

    Financial aspects of the relationship

12. The Tribunal had before it documentary evidence including joint bank account statements, telephone accounts and superannuation documentation which indicate the parties support each other financially. Documentation such as rates notices, vehicle registration and Statutory Declarations confirm they reside together at the house of the sponsor’s parents, currently paying them $100 per week in board. The oral evidence of the applicant and sponsor was that they shared financial resources with each other and contributed to household expenses. Oral evidence from the sponsor’s parents confirmed the parties contributed to the financial pool of the household. The Tribunal accepts the aforementioned oral and documentary evidence as persuasive and indicative of an entwining of financial affairs between the couple, affording it medium weight in support of the financial aspects of the relationship.

    Nature of the household

13. The applicant and sponsor provided consistent oral evidence to the Tribunal concerning the commencement of their cohabitation at the sponsor’s parents’ residence following their marriage on 30 March 2013. They also detailed that the sponsor was incarcerated for a period of approximately 6 months during 2017, and that the visa applicant remained living at his parents’ residence with their Australian citizen daughter during this time. The couple informed the Tribunal that they considered themselves to have maintained the relationship during this period and at the time of this decision both live together at the same residence. The Tribunal accepts this evidence. The parties gave oral evidence that they assist each other with housework and the care of their Australian citizen daughter. The oral evidence of the sponsor’s parents’ confirmed the aforementioned. The Tribunal accepts that cogent evidence was before it demonstrating the applicant and the sponsor currently live together as spouses in an extended family setting and have done so for quite some time. After careful consideration, the Tribunal affords the evidence in support of the nature of the household high weight.

    Social Aspects of the Relationship 

14. Documentary evidence such as photographs, third party statements, and travel records demonstrate that the applicant and the sponsor are known as spouses among their family and friends, and that they regularly engage in social activities. In their oral evidence, the couple outlined in a consistent fashion how they mostly engage in family related activities given their role as parents. The oral evidence of the sponsor’s parents’ corroborated the aforementioned. It is apparent to the Tribunal, that at the time of this decision, both the applicant’s and sponsor’s families are fully aware of their spousal relationship. Following careful consideration, the Tribunal affords the evidence in support of the social aspects of the relationship medium weight.

    Nature of the persons’ commitment to each other

15. The documentary and oral evidence before the Tribunal confirms the applicant and the sponsor have been in a spousal relationship since their marriage on 30 March 2013 and that they have lived together continuously since that time, but for a six month separation whilst the sponsor was incarcerated. The applicant and the sponsor both told the Tribunal that they see the relationship as long term and derive emotional support from each other. The couple are the parents of a young Australian citizen child and the Tribunal observed a loving interaction amongst the family unit at the review hearing. It is apparent to the Tribunal that the best interests of the child are served by the family unit remaining intact. The Tribunal accepts the oral evidence of the parties’ that they remained committed to each other through a difficult period when the sponsor was incarcerated. The oral evidence of the sponsor’s parents’ corroborated the aforementioned matters. After careful consideration, the Tribunal affords the evidence in support of the nature of the persons’ commitment to each other high weight.

    CONCLUSION

16. Having regard to the matters above, the Tribunal is satisfied that Mrs Thi Yen Kim Nguyen and Mr Minh Tri Nguyen are validly married, have had, and continue to have, a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship between them has been and remains genuine and continuing. The Tribunal is also satisfied that they currently live together. The Tribunal is therefore satisfied that the requirements of s.5F(2)(a)-(d) of the Act are met at the time of this decision.

17. Given these findings the Tribunal is satisfied that at the time of this decision the parties are in a spousal relationship. The Tribunal is further satisfied that at the time of this decision the applicant is eligible to hold a Subclass 820 visa, she continues to be sponsored by the sponsoring partner, and at least two years have passed since the visa application was made. Therefore, the applicant meets the requirements of cl.801.221(2)(a)-(d).

18. 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

19. 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.

    K. Chapman
    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).