NGUYEN (Migration)

[2017] AATA 2350

NGUYEN (Migration) [2017] AATA 2350 (15 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Thi Thien Trang NGUYEN

CASE NUMBER:  1703919

DIBP REFERENCE(S):  CLF2013/99397 CLF2017/21103

MEMBER:Michael Cooke

DATE:15 November 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 15 November 2017 at 2:55pm

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary) – No appearance at the Tribunal hearing – Federal court remittal – No evidence of a spousal relationship

LEGISLATION

Migration Act 1958 s 5F, 5F(2)(a)-(d) ,65, 362B, 375A

Migration Regulations 1994, rr. 1.15A, 1.15A(3), Schedule 2 cls. 820.221, 820.211(2), 820.211(2)(a), 820.211(3), 820.211(7)-(9)

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 15 May 2014 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 applied for the visa on 7 May 2013 on the basis of her relationship with her sponsor. 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(2)(d) because the applicant did not meet the Schedule 3 criteria.

4. The matter is before the Tribunal because of a Court order requiring the Tribunal to reconsider the matter. A previous decision in 2015 was also remitted to the Tribunal by Court order.

5. The applicant was scheduled to appear before the Tribunal on 7 August 2017. The applicant’s representative requested a postponement which was granted. The Tribunal then re-scheduled the hearing for 9 October 2017 and the representative then requested a further postponement claiming he could not find the applicant. The Tribunal did not accede to the second request in view of the earlier postponement which had been granted two months earlier.

6. The applicant did not appear before the Tribunal on 9 October 2017 to give evidence and present arguments. The applicant’s representative has not indicated (as at time of decision) that he has been able to contact the applicant.

7. The Tribunal will now finalise the application by written statement under section 362B and make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

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

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the parties are in a genuine and continuing spouse relationship at time of decision.

11. The Departmental file was the subject of s.375A certificate. The Tribunal is satisfied as to the validity of the certificate. The Tribunal finds that no information covered by the certificate is adverse to the applicant and could impact negatively on her case.

12. The applicant did not attend the scheduled hearing at which he would have been alerted to this 375A certificate. His representative claims he is not contactable. Neither he nor his representative has contacted the Tribunal following his non-appearance.

    Whether the parties are in a spouse or de facto relationship

13. Clauses 820.211(2)(a) 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. ‘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 about 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 parties’ 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?

15. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. 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?

16. The Tribunal must consider all the circumstances of the relationship including the matters specified in r.1.15A in determining whether the parties are in a “married relationship” as defined by s.5F(2).

17. The review applicant provided some evidence to the Department at the time of application in 2013, and further documentary evidence was received by the Tribunal in August 2016 pursuant to the Court remittal and second rehearing of the case (AAT1517760) (T1, ff.39-64).  Since that time no current evidence whatsoever has been provided to the Tribunal that the review applicant and her sponsor remain, or are currently in, a spousal relationship.  For example there is no evidence before the Tribunal since the Court remittal decision on 2 March 2017 and onward, concerning the financial aspects of their relationship, the nature of any household, any social aspects of the relationship, or the nature of the persons’ commitment to each other. The Tribunal notes that her authorised representative has been unable to contact the applicant despite the fact that she has succeeded in having two cases before the Tribunal remitted back to the Tribunal by the Court.

18. The Tribunal has considered the prior evidence (pursuant to reg.1.15A(3)) that was available to the Tribunal. However, the Tribunal is not satisfied, on the evidence before it, that at the time of decision the parties are in a spousal relationship. Therefore, the Tribunal finds that the review applicant does not continue to satisfy cl.820.211(2) at the time of decision pursuant to cl.820.221.

19. The Tribunal has reviewed and is satisfied the review applicant does not meet the alternative criteria in cl.820.211(7), 820.211(8), 820.211(9), 820.221(2) and c

20. Given the above, the Tribunal did not need to go on to determine whether the applicant satisfied the time of application criteria in cl.820.211(2).

21. On the basis of the above the Tribunal is not satisfied that the requirements of s.5F(2)(b)-(d) are met at the time of this decision.

22. Therefore, the applicant does not meet cl.820.221

23. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

24. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Michael Cooke
    Senior 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).