Nguyen (Migration)
[2025] ARTA 2121
•1 July 2025
NGUYEN (MIGRATION) [2025] ARTA 2121 (1 JULY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Thi Ngoc Xuyen Nguyen
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2449725
Tribunal: Senior MemberM Bourke
Place:Melbourne
Date: 1 July 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl.820.211(2) and cl.820.221 of Schedule 2 to the Regulations.
Statement made on 01 July 2025 at 1:53pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Court remittal – genuine and continuing relationship – home site visit report without interpreters – joint home purchase – shared household expenses – shared care and support of the sponsor’s children – family recognition of the relationship – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 65, 359, 375
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.15CASES
He v MIBP [2017] FCAFC 206
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 30 June 2014 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant, which in this case is the applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(a) because the delegate was not satisfied the applicant had provided evidence and information to demonstrate that she was the spouse of the sponsoring partner.
The applicant applied to the Tribunal for review of the Department’s decision. The Tribunal (differently constituted, and at the time the Administrative Appeals Tribunal) in a decision dated 4 August 2017 affirmed the Department’s decision.
The Federal Circuit and Family Court of Australia (Division 2) in a judgement dated 21 April 2022 granted the application of the Minister in confirming that the claim of privilege attached to documents of the Department should be upheld. These are related to redacted copies of documents (unredacted copies of which had been provided to the Court).
The applicant then applied to the Federal Court of Australia and the matter was remitted by consent order dated 26 November 2024 back to the Tribunal on the basis that the Minister concedes that in relying on the delegate’s interpretation of the site visit report, rather than forming its own views on the same, the Tribunal in its decision record of 4 August 2017, had failed to take account of substantial and consequential evidence and thereby had committed jurisdictional error.
The applicant appeared before the Tribunal on 30 June 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Hung Viet Nghiem, the applicant’s sister, the applicant’s brother-in-law (husband of the applicant’s sister) and two friends of the applicant. Further witnesses were available to be contacted by telephone, but did not give evidence in the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Non-disclosure certificates
The Department issued four nondisclosure certificates on the Department file.
The Department issued a certificate under s.376 of the Act dated 7 February 2024. This certificate had the name of the delegate but did not have the signature of the delegate on the certificate. The certificate had the name of the delegate beside the words “Delegate’s signature”. The name of the delegate is not an electronic signature and the certificate had not been validly signed. The Tribunal is satisfied that this certificate is not valid.
The Department issued a certificate under s.375A of the Act recording that it applied to “[documents OR information] in CLF 2014/91424 of file number CLD 2025/5715756”. The Tribunal wrote to the Department advising that in its view this certificate was not valid. In response to a query from the Department the Tribunal advised that the certificate did not record the document or documents to which the certificate applies.
The Tribunal did not receive notification that this certificate was revoked. The Tribunal notes that this certificate was not signed and beside the words “Delegate’s signature” is the name of the delegate and the words “Digitally signed”. The Tribunal is not satisfied that this certificate is signed. Further the Tribunal is not satisfied that a certificate that does not identify the documents or information to which it applies, and purports to apply to an entire Department file is not valid.
The Tribunal subsequently received a certificate issued by the Department under s.375A of the Act dated 28 May 2025. This certificate recorded that it applied to the document CLD 2025/5715756 of file number CLD 2014/91424. The certificate recorded that disclosure of these documents would be contrary to the public interest and would disclose lawful methods for preventing, detecting and investigating breaches or invasions of the law which would, or be likely to, prejudice the effectiveness of those methods. The document CLD 2025/5715756 appears to the Tribunal to be an entire file of 273 pages, and includes hundreds of folios of information provided by the applicant. The Tribunal is not satisfied that the documents to which the certificate purports to apply includes information that would disclose lawful methods for preventing, detecting and investigating breaches or invasions of the law.
Further the certificate dated 28 May 2025 is not signed and under the words “Delegate’s signature” has the name of the delegate and the words “Digitally signed”. The Tribunal is not satisfied that this certificate is signed. For the above reasons the Tribunal is not satisfied that this certificate is valid.
The Department issued a certificate dated 23 January 2025 under s.375A of the Act which was signed and dated and recorded the reasons why disclosure of the documents to which the certificate applied would be contrary to the public interest, namely that the information is of lawful methods for preventing, detecting and investigating breaches or invasions of the law, and disclosure would, or be likely to, prejudice the effectiveness of those methods.
The applicant, through her representative advised that she had been provided with some of the documents to which the certificate dated 23 January 2025 applies.
The certificate dated 23 January 2025 applied to 7 specific documents.
The first document is a two-page site referral visit, and the applicant had received a redacted version of this document. Pursuant to the Federal Circuit and Family Court of Australia (Division 2) judgement of 21 April 2022, the Tribunal will not provide documents that have been redacted by the Department. The second document is a site visit plan, comprising of Parts A – F. The Tribunal accepts the advice of the applicant that she has been provided with Parts E and F. The third document to which the certificate applies is an official hand written note of one page. The fourth of document to which the certificate applies is a confirmation of one sentence of approval for the site visit, with a photo of a house attached. The Tribunal is satisfied that the above documents to which the certificate applies (excluding Parts E and F) are preparatory arrangements for the site visit and are not relevant to issues to be determined in the review.
The fifth and sixth documents to which the certificate applies are hand written interview notes of the officers who interviewed the applicant and the sponsor at the time of the site visit. The seventh document is the post site visit report also known as Part E, which was provided to the applicant. The Tribunal is satisfied that the relevant results of the hand written interview notes are incorporated in the post site visit report and therefore the relevant information from the fifth and sixth documents are incorporated in the seventh document and have been provided by the Minister as part of the appeal process to the applicant.
The Tribunal provided copies of the nondisclosure certificates to the applicant prior to the hearing. The Tribunal considered the applicant’s submissions as to the validity of the certificates and its obligations in relation to the information covered by the certificates. The Tribunal advised the applicant in writing as to its view of the validity of the certificates, and the general nature of the documents to which the certificate dated 23 January 2025 applied prior to the hearing.
In the hearing the Tribunal discussed with the applicant and her representative that for the reasons given above, the Tribunal found the certificate dated 23 January 2025 was valid. The Tribunal discussed that the information in the seventh document to which the certificate applied, a copy of which had been provided to the applicant by the Minister contained adverse and relevant information which would be discussed in the course of the hearing.
The home site visit
The Tribunal has considered the information in the home site visit report, the information in the Department’s decision record dated 8 April 2016, and the evidence of the applicant and the sponsor in the hearing.
The Tribunal has noted that home site visit report records that the sponsor was unable to locate his own clothing or personal effects in the home, the sponsor and the applicant gave different information about who owns the home and who resides at the home and whether the sponsor was still in a relationship with his ex-wife, and the applicant and the sponsor gave different information about their lives and where they sleep.
This information was put to the applicant pursuant to s.359A of the Act in the hearing. The applicant commented on the information after a short consultation with her representative.
The applicant gave evidence about where the clothes were kept, that she did the laundry, that she knew of the sponsor’s commitment to his children, and that they were in a genuine relationship at the time of the home site visit. The applicant gave evidence that she lived with and shared a room with the sponsor in the home, and he worked at a bakery at that time.
The Tribunal discussed with the applicant and then with the sponsor in the hearing issues pertaining to where the applicant kept his clothes, whether the sponsor spent time with his ex-wife, whether the sponsor’s ex-wife knew of his marriage to the applicant, and general issues about the home site visit.
The home site visit report records that no interpreters were used to assist with the interviews with either the applicant or the sponsor at the time of the home site visit. The applicant and the sponsor both gave evidence that no interpreters were used in the interviews at the home site visit, and they may have been misunderstood and that there was some confusion in the questioning and interview process.
The Tribunal accepts that there was more than one male residing in the home at the time of the home site visit, and it is hard to conclude that the Departmental officers could be satisfied that the sponsor did not have any clothing of his own in the home, and therefore conclude that the sponsor did not reside at the home.
The Tribunal accepts that the sponsor has continued to have a role in the parenting and care of his two children after the separation from his previous wife, and that the applicant was aware of his ongoing contact with his ex-wife and his two children at the time of the home site visit.
The Tribunal accepts that the Departmental officers had cause for concern at the time of the home site visit, but by conducting interviews without the assistance of interpreters, the Tribunal finds that it cannot be satisfied that the conclusions drawn by the Departmental officers as a result of those interviews at the time of the home site visit are necessarily reliable or accurate.
The Tribunal has concluded that it therefore puts less weight on the findings of the Department in relation to the home site visit then the delegate in the Department decision record dated 8 April 2016, or the previously constituted Tribunal.
Joint purchase by sponsor and his ex-wife
The Tribunal is satisfied based on the written and oral evidence of the applicant and the sponsor, that the sponsor and his ex-wife jointly purchased a residential property in 2019. The Tribunal discussed with the applicant that this may indicate an ongoing relationship between the sponsor and his previous wife. The Tribunal is satisfied that the sponsor and his ex-wife purchased the property for the future financial benefit of their two children. The Tribunal is satisfied that the sponsor and his ex-wife both contributed approximately $100,000 each to the purchase of the property, fees and renovations. The Tribunal is satisfied that the sponsor has subsequently resided in the home with the applicant, and has been solely responsible for the mortgage payments since that time. The Tribunal is satisfied that the home is for the future benefit of the sponsor’s children, and was purchased by joint agreement between their parents. The Tribunal is satisfied after assessing the evidence before it, that this joint purchase does not demonstrate an ongoing spousal relationship between the sponsor and his ex-wife.
Assessment of evidence before the Tribunal
The Tribunal has considered the evidence of the four witnesses at the hearing. The applicant’s sister stated she sees her sister every couple of weeks, knows she is living with the sponsor and knows the sponsor is not in a relationship with his ex-wife. The applicant’s brother-in-law stated he is a close friend of the sponsor, as well as their wives being sisters, and that he and his wife often have meals with the applicant and the sponsor. The applicant’s friend Ms Dinh stated the applicant and sponsor are a true couple, she has known them a long time, she often sees them shopping together or at the market together or having lunch together. The applicant’s friend Ms Le stated she has known the applicant and sponsor for over 10 years, she sees them approximately every month, and describes them as a genuine couple.
The Tribunal has considered the submission and evidence provided by the applicant prior to the hearing. The Tribunal gives significant weight to a statement from the sponsor’s son dated 27 June 2025 who is a high school student, and a statutory declaration from the sponsor’s daughter dated 25 June 2025. The sponsor’s children both give details of their living arrangements with their mother, and staying with their father (the sponsor) and their stepmother (the applicant). Further they provide detailed information of their developing relationship with the applicant and the length of time that they have known their stepmother.
The Tribunal has also considered the other evidence including detailed statutory declarations from both the applicant and the sponsor dated 23 June 2025, a collection of photos depicting social events over many years, and statutory declarations from the applicant’s niece, the applicant’s sister, the applicant’s brother-in-law, and the applicant’s friend. The Tribunal has also considered financial documents, including joint bank statements, utility bills, Vicroads registration and telephone records. The Tribunal has considered medical reports in relation to the applicant discussed in the hearing and provided after the hearing.
The Tribunal has also considered the information provided to the Department and the Tribunal previously constituted.
Overall the Tribunal is satisfied that the breadth of evidence of the relationship, particularly over such a long period of time is sufficient to demonstrate that the applicant is the spouse of the sponsoring partner.
SPOUSE/DE FACTO (cl 820.211(2)(a), cl 820.221)
Whether the parties are in a spouse or de facto relationship
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.
‘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 and the nature of the parties’ 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?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal has considered the sponsor’s divorce documents. Based on the registered Victorian marriage certificate, the Tribunal is satisfied that the applicant and sponsor were married on 28 June 2014 at Abbotsford. 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 spouse relationship met?
Financial aspects of the relationship: – the Tribunal is satisfied that the parties do not jointly own real estate or other major assets. The Tribunal is satisfied the parties do not have joint liabilities, and the mortgage and the utility bills for the property where they reside are in the name of the sponsor. The Tribunal is satisfied that the applicant has no work rights, and has had no income since 2016. The Tribunal is satisfied that the parties have a joint bank account, but also have individual personal bank accounts. Based on the evidence provided, the Tribunal is satisfied that the parties do not pool their financial resources. There is no evidence before the Tribunal that one person in the relationship owes any legal obligation in respect of the other. The Tribunal is satisfied that the parties share the day-to-day household expenses, on the basis that the sponsor provides the applicant with any money she needs for shopping or groceries and food for the household.
The evidence of the financial aspects of the relationship is insufficient to indicate that the relationship between the applicant and the sponsor meets any of the requirements for a spousal relationship in s.5F(2) of the Act.
Nature of the household: – the Tribunal is satisfied that the parties have joint responsibility for the care and support of children, namely the two children of the sponsor. The Tribunal is satisfied that the two children reside mainly with their mother, but regularly spend time with the sponsor and the applicant. The Tribunal is satisfied that the parties’ living arrangements are that they reside together as a married couple and have done so since their marriage on 28 June 2014. The Tribunal is satisfied that the applicant is primarily responsible for all the housework, although the parties often do the shopping together.
The evidence of the nature of the household indicates that the parties are in a genuine and continuing relationship, and lived together, and not separately and apart on a permanent basis, at both the time of application and the time of decision.
Social aspects of the relationship: – the Tribunal is satisfied that the applicant and sponsor represent themselves to other people as being married to each other. The Tribunal is satisfied that the opinion of the persons’ relatives, friends and acquaintances is that the nature of the relationship is genuine, committed and long lasting. The Tribunal is satisfied that the parties undertake joint social activities around spending time together with friends and family, shopping together and focusing on the sponsor’s plan for his own bakery.
The evidence of the social aspects of the relationship indicates that the parties have a mutual commitment to a shared life as a married couple to the exclusion of all others, and that the relationship is genuine and continuing, at both the time of application and the time of decision.
Nature of the persons’ commitment to each other: – the Tribunal is satisfied that the parties have been married since 28 June 2014, and at the time of application, namely 30 June 2014, the relationship had been in existence for two days, and at the time of this decision the duration of the marital relationship is 11 years. Similarly the Tribunal is satisfied that the parties have resided together since their marriage, and at the time of application the parties had lived together for two days, and at the time of this decision the parties have lived together for 11 years. The Tribunal is satisfied based on the evidence before it that the parties have provided a strong degree of companionship and emotional support to each other. The Tribunal is satisfied that the parties see the relationship as long-term, and their plans include the sponsor’s business plans, the applicant wishing to start work, travel plans, particularly to visit family in Vietnam, and to buy and move to a smaller house.
The evidence of the nature of the persons’ commitment to each other indicates that the parties have a mutual commitment to a shared life as a married couple to the exclusion of all others, that the relationship is genuine and continuing, and that they lived together, and not separately and apart on a permanent basis, at both the time of application and at the time of decision.
Conclusion: – the Tribunal has considered all the circumstances of the relationship as set out in reg 1.15A(3). The Tribunal is satisfied that the applicant and the sponsor have a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship is genuine and continuing, and they lived together, and not separately and apart on a permanent basis. Accordingly the Tribunal is satisfied that at the time of application and at the time of decision the applicant and the sponsor were in a spousal relationship within the meaning of s.5F(2)(b)-(d).
For the above reasons, the Tribunal is satisfied that the requirements of s 5F(2) are met at the time the visa application was made and at the time of this decision.
Time of application requirements.
The Tribunal is satisfied that the applicant is the spouse of the sponsoring partner who is an Australian citizen, and therefore the Tribunal finds that the applicant meets the requirements of cl.820.211(2)(a) at the time of application.
The Tribunal has considered the sponsorship form, and the identity documents in relation to the sponsor. The Tribunal is satisfied that the applicant is sponsored by her spouse who had turned 18 at the time of application. Therefore the Tribunal is satisfied that the applicant meets the requirements of cl.820.211(2)(c) at the time of application.
The Tribunal is satisfied that the applicant was the holder of a student visa at the time of application, namely 28 June 2014. The Tribunal notes that the applicant’s visa was subsequently cancelled, but this was after the time of application. Accordingly the requirements of cl.820.211(2)(d) do not apply.
The Tribunal is satisfied that the applicant meets the requirements of cl.820.211(2)(a), (c) and (d), and therefore meets the requirements of cl.820.211(2) at the time of application.
Time of decision requirements
As stated above, the Tribunal is satisfied that the applicant is the spouse of the sponsoring partner within the meaning of s.5F(2) at the time of decision. The Tribunal is satisfied that the applicant continues to meet the requirements of cl.820.211(2) at the time of decision. Accordingly, the Tribunal is satisfied that the applicant meets the requirements of cl.820.211(1)(a).
Therefore, the Tribunal is satisfied that the applicant meets the requirements of cl.820.221 at the time of decision.
Given the findings above, the appropriate course is to set aside the decision under review and remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.
DECISION
The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration in accordance with the order that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl.820.211(2) and cl.820.221 of Schedule 2 to the Regulations.
Dates of hearing(s): 30 June 2025
Representative for the Applicant: Ms Karyn Anderson
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).
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