Nguyen (Migration)

[2017] AATA 1470

Nguyen (Migration) [2017] AATA 1470 (9 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Thanh Tam Nguyen

CASE NUMBER:  1614912

DIBP REFERENCE(S):  OSF2012029687

MEMBER:Marten Kennedy

DATE:9 August 2017

PLACE OF DECISION:  Adelaide

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

Statement made on 09 August 2017 at 4:44pm

CATCHWORDS
Migration – Partner (Migrant) (Class BC) visa – Subclass 100 – Relationship broken down after visa refusal  – Sponsor unable to be located – Permanent visa refused where relationship breaks down by the time of decision – No evidence marriage was dissolved –Valid marriage is of itself insufficient for migration purposes

LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, Schedule 2, cl 100.111, cl 100.221, r 1.15A(3)

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 26 August 2016 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant made a combined application for the visa on 27 February 2012 on the basis of her relationship with her sponsor.  A delegate of the Minister granted the applicant a subclass 309 (Partner Provisional) visa on 19 September 2012.  The applicant entered Australia on 25 September 2012.

3. On 29 November 2013, the Department commenced its consideration of the subclass 100 visa.  The applicant and sponsor were interviewed by telephone on 6 February 2015, and in person at the Department’s office on 17 July 2015.  The delegate refused to grant the applicant the subclass 100 visa on 26 August 2016. 

4. The criteria for the grant of a Subclass 100 visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

5. Clause 100.221 requires that the applicant meet one of five alternative requirements. These include cl.100.221(2) which requires, among other things, that at the time of this decision, the applicant is the spouse or de facto partner of the ‘sponsoring partner’.

6. At the hearing, I observed that Mr Huynh was not identified on the list of witnesses to give evidence.  I asked Ms Nguyen to explain why Mr Huynh was not present to support the application.  Ms Nguyen told me that after the visa was refused by the Department, the relationship had broken down. Ms Nguyen told me she has been unable to locate Mr Huynh.

7. At the hearing, I explored the alternative ways of satisfying cl.100.221 with Ms Huynh and her representative, Mr Galloway, but none appear to be in issue. Ms Nguyen confirmed there were no children, and to the best of her knowledge, Mr Huynh was still alive. Specifically, in written submissions provided after the hearing with my permission, the applicant’s representative confirmed his instructions that no claims of family violence were made, because no family violence had occurred.

8. In written submissions, it is submitted that the approach of the Department in reaching the decision under review is open to criticism.  It is submitted that the conclusion of the Department that the relationship lacked bona fides was affected by the way in which its investigations were conducted.  It is suggested that I could reach a different view as to the genuineness of the relationship on the evidence before the Department and on that basis could remit the matter back to the Department.

9. It is unnecessary for me to engage with the criticisms of the Department’s approach in reaching the decision that the applicant and Mr Huynh were not in a married relationship at the time of the Department’s decision.  Nor is it necessary for me to form a view about whether the evidence before me satisfies me that the applicant and Mr Huynh were in a married relationship on 26 August 2016, when the decision under review was made.  The status of the relationship on 26 August 2016 is now no longer determinative.

10. Clause 100.221 of Schedule 2 to the Regulations is a criterion to be satisfied at the time of decision. In context, the time of decision is the present. The scheme of the legislation in providing for a provisional and then permanent visa a number of years later is intended to have the effect that where a relationship breaks down by the time of the decision on the permanent visa (absent any of the matters provided for as alternative means of satisfying cl.100.221) the permanent visa will be refused.

11. The issue for me to decide in these circumstances is whether Ms Nguyen is the spouse of her sponsoring partner: cl.100.221(2)(b) of the Regulations. This criterion is to be satisfied at the time of (my) decision.

12. The ‘sponsoring partner’ in relation to the applicant means, relevantly, an Australian citizen who was specified as the applicant’s spouse in the application that resulted in the grant of the subclass 309 visa: cl.100.111 of Schedule 2 to the Regulations. That person is Mr Huynh.

13. ‘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’.

14. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act.  In this case, I accept that Ms Nguyen and Mr Huynh were validly married in Vietnam on 11 October 2011.  A certified translation of a Vietnamese marriage certificate is at folio 44 of the Departmental file.  There is nothing before me to indicate that the marriage has been dissolved.

15. A valid marriage is of itself insufficient for migration purposes.  In addition I must be satisfied to determine that:

    ·there is a mutual commitment to a shared life as husband and wife to the exclusion of all others,

    ·the relationship is genuine and continuing,

    ·and the couple live together, or not live separately and apart on a permanent basis.

    s.5F(2)(b)-(d).

16. 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).

17. The evidence now before me is that the relationship has broken down, and Ms Nguyen has been unable to make contact with Mr Huynh. I am told that this took place shortly after the refusal decision of the Department in August 2016; the relationship broke down therefore approximately 12 months ago. This evidence of itself is completely incompatible with me making any of the necessary determinations in order to find that Ms Nguyen is in a married relationship with her sponsoring partner. No purpose is to be served by me expressly addressing each of the matters in r.1.15A(3) of the Regulations.

18. In light of the evidence of Ms Nguyen therefore, I am not satisfied to make any of the determinations provided for in s.5F(2)(b)-(d), and am not satisfied that Ms Nguyen is the spouse of her sponsoring partner at the time of my decision.

19. As none of the alternative means of satisfying cl.100.221 are placed in issue by the evidence, I find that Ms Nguyen does not meet the criterion at cl.100.221 at the time of my decision.

20. In these circumstances the visa must be refused.

    DECISION

    The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.

    Marten Kennedy
    Member