NGUYEN (Migration)

[2017] AATA 494

NGUYEN (Migration) [2017] AATA 494 (10 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs MINH NGOC NGUYEN

CASE NUMBER:  1606370

DIBP REFERENCE(S):  BCC2015/2174395

MEMBER:Susan Trotter

DATE:10 March 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 10 March 2017 at 3:06pm

CATCHWORDS

Migration – Partner (Migrant) (Class BC) – Subclass 100 – No longer in spousal relationship with sponsor – Relationship broken down - Divorce proceedings under way

LEGISLATION
Migration Act 1958

, ss 5F(2)(a) - (d), 65

Migration Regulations 1994

, Schedule 2 – cl 100.221(2), (2A), (3), (4), (4A), r.1.15A(3)

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 15 April 2016 to refuse to grant the visa applicant, Mrs Nguyen, a Subclass 100 Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).

2. 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).

3. Mrs Nguyen made a joint application for a Subclass 309 Partner (Provisional) Class UF visa and a Subclass 100 Partner (Migrant) (Class BC) visa on 18 June 2014 on the basis of her relationship with Mr David Ngo.

4. On 10 March 2015, Mrs Nguyen was granted the Subclass 309 visa on the basis that she was the spouse of Mr Ngo.

5. On 15 April 2016, the delegate refused to grant the Subclass 100 visa to Mrs Nguyen on the basis that Mrs Nguyen was no longer in a spousal relationship with Mr Ngo and did not satisfy the requirements of any of subclauses 100.221(2), (2A), (3), (4) or (4A).

6. Mrs Nguyen lodged an application for review of the delegate’s decision with the Tribunal on 5 May 2016. Mrs Nguyen provided a copy of the delegate’s decision record to the Tribunal when she lodged her application.

7. Mrs Nguyen appeared before the Tribunal on 7 March 2017 to give evidence and present arguments. Mr Peter Quaedvlieg, Mrs Nguyen’s godmother’s husband, also appeared before the Tribunal and gave evidence. The Tribunal was assisted by an interpreter in the Vietnamese and English languages.

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

   ISSUES

9. There is a two stage process for Partner visas. The applicant must hold a provisional visa in order to be granted a permanent visa. The grant of the provisional visa (Class UF) enables an applicant to travel to and remain in Australia on a temporary basis. Following the grant of a temporary visa, a permanent visa (Class BC) may be granted in a range of circumstances, usually where the relationship has been ongoing for at least two years and is genuine and continuing[1], unless the sponsoring partner has died (cl.100.221(3)) or the relationship has ceased and certain circumstances exist. These circumstances include that the applicant, or a member of the family unit of the applicant and/or sponsor, has suffered family violence committed by the sponsor (cl.100.221(4)(c)(i)) or the child exception applies (cl.100.221(4)(c)(ii)).

   [1] See cl.100.221(2) and (2A)

10. Mrs Nguyen arrived in Australia on 13 May 2015 as the holder of a Subclass 309 visa granted to her on 10 March 2015 on the basis that she was the spouse of Mr Ngo.

11. ‘Spouse’ is defined in section 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:

    (a)  must be married to each other under a marriage that is valid for the purposes of the Act;

    (b)  there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others;

    (c)  the relationship must be genuine and continuing; and

    (d)  the couple must live together, or not live separately and apart on a permanent basis.

    (subparagraphs 5F(2)(a) - (d) of the Act).

12. 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 of the relationship 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).

13. It follows that the issues to be determined by the Tribunal are as follows:

    (a)  Does Mrs Nguyen continue to be the spouse of Mr Ngo; and, if not,

    (b)  Has Mr Ngo died since Mrs Nguyen first entered Australia as the holder of a Subclass 309 visa, or

    (c)  Is Mrs Nguyen or a member of the family unit of Mrs Nguyen and/or Mr Ngo taken to have suffered family violence committed by Mr Ngo?, that is:

    (i)Has there been a judicially determined claim of family violence?;

    or

    (ii)Has a joint undertaking by Mrs Nguyen and Mr Ngo been made to a court or has the required evidence for a non-judicially determined claim of family violence been provided?; and, if so,

    i.Is the Tribunal satisfied that Mrs Nguyen or a member of the family unit of Mrs Nguyen and/or Mr Ngo has suffered relevant family violence committed by Mr Ngo?; or, if not,

    ii.Has a valid opinion of an independent expert been given that Mrs Nguyen or a member of the family unit of Mrs Nguyen and/or Mr Ngo has suffered relevant family violence committed by Mr Ngo?;

    or

    (d)  Does Mrs Nguyen meet the specified criteria in cl.100.221(4)(c)(ii) in relation to a child or children?

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Issue 1 – Does Mrs Nguyen continue to be the spouse of Mr Ngo?

14. Mrs Nguyen’s evidence to the Tribunal was that she has commenced divorce proceedings in relation to her 17 March 2014 marriage to Mr Ngo however those proceedings have not yet been finalised. She told the Tribunal that she last saw Mr Ngo on 5 January 2016 when he dropped her to work. When she returned from work he had removed all of his belongings from their home and she has not seen him since. Her evidence was that there has been limited contact by SMS messages since that time, however that they have not shared a household, shared social activities, shared finances or spoken in person since 5 January 2016 and that she has commenced divorce proceedings, which Mr Ngo has also signed, although those proceedings have not yet been finalised.

15. The Tribunal discussed with Mrs Nguyen that, as noted in the reasons for decision of the delegate of the Department which were provided by her to the Tribunal when her application was made, the Department received information in January 2016 that her relationship with Mr Ngo had broken down, which information was consistent with her evidence to the Tribunal. In this regard, the Tribunal also disclosed to Mrs Nguyen that there was information provided to the Tribunal that was subject to a certificate under s.375A of the Act, on the basis that disclosure would be contrary to the public interest. The Tribunal provided Mrs Nguyen with a copy of the certificate, read the contents of the certificate to Mrs Nguyen and indicated that it had considered the certificate and was satisfied that the certificate was valid. In this regard, the Tribunal notes that the certificate was written by a delegate of the Minister and it specifies a public interest reason why the information should not be disclosed. The Tribunal explained to Mrs Nguyen that it was prohibited from providing the information to her but could disclose particulars or the gist of the information to her without disclosing the information itself, which the Tribunal determined it was appropriate to do given that the information was consistent with Mrs Nguyen’s evidence to the Tribunal. The Tribunal invited Mrs Nguyen to respond in relation to the s.375A certificate, including as to its validity and the information the subject of the certificate, the gist or particulars of which was that the Department had received information that Mrs Nguyen’s relationship with Mr Ngo had broken down and that the sponsorship of her visa application had been withdrawn. Mrs Nguyen responded to the Tribunal and agreed that this information was correct.

16. Therefore, having regard to the evidence, including the r.1.15A matters to which it is required to have regard, the Tribunal concludes that Mrs Nguyen does not continue to be the spouse of Mr Ngo as at the date of decision.

    Issue 2 - Has Mr Ngo died since Mrs Nguyen first entered Australia as the holder of a Subclass 309 visa?

17. The Tribunal noted at hearing that there was no evidence that Mr Ngo has died and Mrs Nguyen agreed. The Tribunal is therefore not able to conclude that Mr Ngo has died since Mrs Nguyen first entered Australia as the holder of a Subclass 309 visa. Cl.100.221(3) therefore has no application.

    Issue 3 – Is Mrs Nguyen or a member of the family unit of Mrs Nguyen and/or Mr Ngo taken to have suffered family violence committed by Mr Ngo?

18. For Mrs Nguyen or a member of the family unit of Mrs Nguyen and/or Mr Ngo to be taken to have suffered family violence committed by Mr Ngo, there first must be a claim of family violence. There is no evidence before the Tribunal that Mrs Nguyen has raised a claim of family violence with the Department. At hearing, in response to the Tribunal’s questioning, Mrs Nguyen’s evidence was that she was psychologically impacted by the breakdown of her relationship with Mr Ngo but there was no family or domestic violence during the relationship with Mr Ngo. Mr Quaedvlieg’s evidence was that he was of the view that there was psychological violence in Mrs Nguyen’s and Mr Ngo’s relationship from the outset because in his view Mr Ngo and his mother only wanted a baby making machine from Mrs Nguyen. Mrs Nguyen’s further evidence, when queried, was that she has never consulted or seen or spoken to a doctor, a psychologist, a psychiatrist or anyone at all in relation to any family or domestic violence.

19. Based on the evidence, the Tribunal therefore concludes that there has been no claim of family violence made. Mr Quaedvlieg’s evidence does not amount to a claim of family violence. There has been no judicially determined claim of family violence and the required evidence for a non-judicially determined claim of family violence has not been provided. It follows that neither Mrs Nguyen nor a member of the family unit of Mrs Nguyen and/or Mr Ngo can be taken to have suffered family violence committed by Mr Ngo. Cl.100.221(4)(c)(i) therefore has no application.

    Issue 4 - Does Mrs Nguyen meet the specified criteria in cl.100.221(4)(c)(ii) in relation to a child or children?

20. Mrs Nguyen’s evidence was that neither she nor Mr Ngo have any children, nor legal obligations in relation to any children. Cl.100.221(4)(c)(ii) therefore has no application.

    Conclusion

21. The Tribunal is also satisfied that cl.100.221(4A) has no application because the Tribunal has not remitted a decision for reconsideration or found that Mrs Nguyen has met the criteria for grant of a Subclass 100 visa, apart from the criterion that she holds a 309 visa.

22. For the reasons above, Mrs Nguyen does not satisfy the criteria for the grant of the visa.

    DECISION

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

    Susan Trotter
    Member