Nguyen (Migration)

[2023] AATA 3638

Nguyen (Migration) [2023] AATA 3638 (27 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Hong Duong Nguyen

VISA APPLICANTS:  Ms Thi Kim Dung Huynh

Miss Thi Hai Ly Bui

CASE NUMBER:  1836588

DIBP REFERENCE(S):  BCC2018/52463

MEMBER:Moira Brophy

DATE:27 October 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl 309.211 of Schedule 2 to the Regulations; and

·cl 309.221 of Schedule 2 to the Regulations

with an additional direction that the secondary visa applicants meet the following:

·cl 309.312 of Schedule 2 to the Regulations.

Statement made on 27 October 2023 at 12:41pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner) – genuine and continuing relationship – validly married in home country – financial, household and social aspects of relationship and nature of commitment – rapid inception of relationship and limited time spent together – genuine and persuasive evidence – member of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 309.211(2), 309.221, 309.312

CASE
He v MIBP [2017] FCAFC 206

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 Home Affairs on 25 October 2018 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 4 January 2018 on the basis of her relationship with her sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional)). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (Cth) (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 309.211 because the delegate was not satisfied on the evidence before it that the visa applicant was the spouse of the sponsor as defined and was not able to meet the requirements of the Regulations.

4. The review applicant appeared before the Tribunal on 23 October 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal was assisted by an interpreter in the Vietnamese and English languages.

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

   Background

6. The visa applicant is a 37-year-old female currently residing in Vietnam. She was previously married in the period from 11 April 2008 to 16 July 2015 to Mr Van Ha Bui. There is one child of the marriage, a daughter born in 2008 who is included in this application. The visa applicant’s parents and seven siblings live in Vietnam.

7. The review applicant, Mr Hong Duong Nguyen, is a 56-year-old male living in Sydney. He was previously married to Ms Thi Binh Nguyen in the period from 12 March 1994 to 21 July 2005. There are two children of the marriage, a daughter and a son. He was then married to Ms Thi Kim Chung Huynh in the period from 17 August 2011 to 7 July 2017. The review applicant sponsored Ms Huynh to Australia. The review applicant came to Australia on 26 January 1983 on a Humanitarian visa. He became an Australian citizen on 27 January 1987.  His father is deceased, his mother, two brothers and one sister reside in Australia and he has one sister living in the UK.

8. At the time of the application, the parties stated they met on 30 July 2015 in Ho Chi Minh City. The parties committed to a long-term relationship to the exclusion of all others on 18 July 2016. Their wedding ceremony was held in Vietnam on 13 August 2017 and they registered their marriage on 16 August 2017. The review applicant returned to Australia on 24 August 2017.

9. The delegate who made the original decision on 25 October 2018 noted the following issues:

   ·There was no evidence of financial intermingling of financial resources.

   ·The delegate gave limited weight to the evidence the parties shared a joint household.

   ·While acknowledging there was some evidence of the social aspects of the relationship (wedding photographs, evidence of shared time with family and friends) the delegate was not satisfied the visa applicant and sponsor presented to family and friends as being in a genuine and continuing spousal relationship.

   ·The delegate was not satisfied the parties were in a committed relationship given the concerns as to the inconsistencies in the answers given at time of interview.

   Tribunal proceedings

10. The issue in the present case is whether the visa applicant and the review applicant were in a genuine spousal relationship at the time of application and continue to be in a genuine spousal relationship at the time of this decision.

11. In making its findings, the Tribunal has considered documents contained in the Department and Tribunal files and oral evidence provided by the review applicant and the visa applicant.

12. The parties generally gave consistent evidence about how they met, of their time living as part of one household when the review applicant visited Vietnam and when the visa applicant visited Australia, and of their respective families. They demonstrated a good knowledge of each other’s circumstances and their evidence as to their future plans was consistent.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Whether the parties are in a spouse or de facto relationship

13. Clause 309.211(2) requires that, at the time the visa application was made, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. With limited exceptions that only apply in relation to a decision to grant or not grant a Subclass 309 visa made on or after 20 August 2022, the visa applicant must continue to be the spouse or de facto partner at the time of the Tribunal’s decision: cl 309.221. In the present case the visa applicant claims to be the spouse of the review applicant 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 a married couple 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 of the relationship, the nature of the visa applicant and review applicant’s household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.

    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. There is nothing in the information before the Tribunal to cast doubt on the validity of the parties' marriage on 16 August 2017 and it was not disputed by the delegate. Consequently, in the absence of any evidence to the contrary, the Tribunal finds that the parties are 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 spouse relationship met?

    Financial aspects of the relationship

16. The review applicant lives in Sydney with his mother and brother in a rented home. They have lived at the house for the past seven years. The review applicant pays $180 for his share of the rent for the property which is $480.  He is in full time employment in a fruit shop working six days per week. He generally earns around $952 per week after tax. 

17. The visa applicant lives in Vietnam with her daughter in a unit she and the review applicant purchased in 2020. She is presently not in paid employment and relies on money sent by the review applicant to meet her and her daughter’s needs.

18. The parties do have a joint bank account. The review applicant sends money to the visa applicant on a monthly basis to assist her with the costs of her and her daughter’s needs. He generally sends around $400 per month.

19. They do not share day-to-day household expenses, and each maintains their own bank account for day-to-day expenses. This is not unusual given the review applicant is in Australia and the visa applicant is in Vietnam.

20. The Tribunal places some weight on this aspect of the relationship as it is indicative of parties in a genuine and continuing relationship pooling their available resources despite living in different countries.

    Nature of the household

21. The Tribunal accepts that since the parties married in 2017, the review applicant has stayed with the visa applicant for around six months and the visa applicant stayed with the review applicant in Australia for around three months. The Tribunal accepts the parties stayed together as a couple during the periods the review applicant was in Vietnam and the visa applicant was in Australia.

22. The parties gave consistent evidence as to the household arrangements during the periods they were together.

23. The parties gave consistent evidence about their plans to establish a joint household in Sydney at the home presently rented by the review applicant with his mother and brother. They hoped to move out into their own place once the visa applicant and her daughter were settled.

24. The Tribunal places little weight on this aspect of the relationship given the limited periods of cohabitation since marriage.

    Social aspects of the relationship

25. The applicants provided statutory declarations (Form 888s) from three persons who knew the parties, and who had spent time with them.

26. The Tribunal accepts from the photographic evidence, the supporting documentation as to shared times together, the statements outlined above, and their oral testimony at hearing, that the parties have as a couple spent time with their family and friends, and they socialise within their community as a married couple.

27. The Tribunal accepts on the evidence before it that the parties present to their family and friends as a married couple.

    Nature of the persons’ commitment to each other

28. Given the concerns raised by the delegate, the Tribunal carefully considered the evidence as to the nature of the commitment of both parties to the relationship. The Tribunal accepts the parties have known each other since 2015.

29. The Tribunal had some concerns as to the nature of the relationship, specifically the limited time the parties had spent together, and the relatively rapid inception of the relationship given the limited time they had spent together.

30. Based on all the evidence, the Tribunal finds the parties have a commitment to each other consistent with them being in a spousal relationship. The Tribunal found their evidence of their concern at their continued separation, especially given the imposed limitation on travel due to the Covid-19 pandemic, to be genuine and persuasive.

31. Given the above findings, the Tribunal is satisfied that at the time the visa application was lodged and at the time of this decision, the parties are validly married, have a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing. The Tribunal finds that they intend to live together in Australia and that they therefore do not live separately and apart on a permanent basis.

32. Accordingly, the Tribunal finds that the visa applicant satisfies the definition of ‘spouse’ in s 5F(2)(a)-(d), and that the parties are in a spousal relationship.

33. The review applicant is an Australian citizen.

34. Given these findings, the Tribunal is satisfied that at the time the visa application was made, and at the time of this decision, the parties were and continue to be in a spousal relationship. The Tribunal finds that the visa applicant is the spouse of the review applicant and satisfies cl 309.211(2) and therefore satisfies cl 309.211. The Tribunal finds that at the time of decision, the visa applicant continues to satisfy cl 309.211.

35. Therefore, the visa applicant satisfies both cl 309.211 and cl 309.221.

    Secondary visa applicants

36. The Tribunal is satisfied on the basis of the application forms that the sponsorship referred to in cl 309.321 in respect of the person who satisfies the primary criteria includes sponsorship of the second named visa applicant, Ms Thi Hai Ly Bui. Accordingly, the Tribunal finds that the second named visa applicant meet cl 309.312 at the time of application.

37. 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 309 visa.

    DECISION

38. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl 309.211 of Schedule 2 to the Regulations; and

    ·cl 309.221 of Schedule 2 to the Regulations

    with an additional direction that the secondary visa applicants meet the following:

    ·cl 309.312 of Schedule 2 to the Regulations.

    Moira Brophy
    Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (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).