Nguyen (Migration)

[2024] AATA 3890

Nguyen (Migration) [2024] AATA 3890 (2 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Duong Hoang Son Nguyen

REPRESENTATIVE:  Mrs Pauline Lam (MARN: 9476142)

CASE NUMBER:  2101591

HOME AFFAIRS REFERENCE(S):          BCC2020/1672839

MEMBER:James Lambie

DATE:2 September 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl 820.311(2)(a) of Schedule 2 to the Regulations

Statement made on 02 September 2024 at 3:51pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – parties’ household arrangements are consistent with their being in a genuine spousal relationship – parties consistently represent themselves to other people being married to each other – couple had a mutual commitment to a shared life to the exclusion of all others – decision under review remitted            

LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, r 1.15, Schedule 2, cls 820.211,820.221

CASES
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 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 3 June 2020 on the basis of his relationship with his 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. 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)(a) because there was insufficient evidence of a spousal relationship.

4. The applicant (Mr Nguyen) appeared before the Tribunal on 16 July 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Ms Cam Tu Tran. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether Mr Nguyen and Ms Tran are in a genuine spousal relationship within the meaning of the Act and Regulations

8. 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.

9. ‘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) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

   Are the parties validly married?

10. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.  The parties produced a certificate of marriage showing they were married on 30 May 2020 in Fairfield, New South Wales.  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?

    Background

11. Ms Tran first came to Australia in 1995 as a refugee. She has lived in Australia since arrival, and was granted Australian citizenship in 1997. She was in a de facto relationship with a Mr Vu Nguyen from 1996 to 2004. There are two adult children of this relationship. She was briefly married (from 2008 to 2009) with a Mr Ai Quoc Pham. There were no children of this relationship.

12. Mr Nguyen was previously married to a Ms Trinh from 2004 until May 2019. He and Ms Trinh divorced in July 2019.  There are two teenage children of this relationship. He has visited Australia on several occasions since August 2018. He visited in Australia briefly, from 5 February to 11 February 2020, the events of which are described below.

13. On 8 February 2020, Ms Tran and Mr Nguyen first met at the Cabramatta Leagues Club, where they discovered they had mutual friends and formed a mutual attraction. They met up several times before Mr Nguyen returned to Vietnam on 11 February 2020. They remained in regular contact and Ms Tran invited him to return to live with her in the unit she had just purchased. Mr Nguyen returned to Australia on 13 March 2020, when they commenced their cohabitation. As noted above, they were married on 30 May 2020. They launched the partner visa the subject of this application on 3 June 2020.

14. In a decision dated 3 February 2021, the visa application was refused. The delegate noted:

    ·limited transactions on the parties’ joint account;

    ·no evidence that they had combined their affairs or share assets and liabilities;

    ·limited evidence of correspondence addressed jointly to the parties;

    ·limited evidence of the social aspects of the relationship; and

    ·inadequate explanation of the rapid development of the relationship.

15. The Tribunal has before it the Department’s case file BCC2020/1672839, which includes the material submitted in support of the visa application (listed in detail in the delegate’s decision) and material submitted by the parties in support of their application to the Tribunal, including, but not limited to, the following;

    ·their individual tax returns for FY 2021 and 2023 to 468;

    ·statements of their joint account with the ANZ bank (xx345) from August 2021 to June 2024;

    ·statements of Ms Tran’s individual bank accounts with the Commonwealth Bank from June 2019 to June 2024;

    ·the parties’ driver’s licences;

    ·correspondence addressed to the parties individually and jointly at the same address, from a variety of sources including Commonwealth and State government agencies;

    ·receipts and itineraries for joint travel;

    ·a bundle of 60 annotated photographs showing the parties in a social setting;

    ·a residential tenancy agreement for a residence at Green Valley, New South Wales, listing both parties as tenants, dated 6 April 2023, and associated rental receipts;

    ·payslips for each party;

    ·form 888 statutory declaration from Thompson Nguyen (Ms Tran’s son), dated 20 April 2024;

    ·Mr Nguyen’s statutory declaration dated 25 April 2024;

    ·form 888 statutory declaration of Phuong Nguyen Tan, dated 24 April 2024;

    ·statement of Huu Loc Tran, dated 18 July 2024;

    ·solicitors’ correspondence concerning the sale of property at Liverpool, various dates in 2012;

    ·a handwritten statement of Thompson Nguyen, undated (submitted 1 August 2024);

    ·statutory declaration of Thi Thuy Linh Pham, dated 26 July 2024;

    ·selection of text messages between Mr Nguyen and Ms Tran, various dates between 2020 and 2022;

16. I have considered all of this material, some of which is discussed in further detail below.

    Financial aspects of the relationship

17. In assessing the financial aspects of the relationship, I have considered the joint ownership of assets, joint liabilities, the extent of pooling of financial resources, any legal obligations owed by one party to the other, and any sharing of day-to-day household expenses.

18. In his statutory declaration of 25 April 2024, Mr Nguyen stated:

    My wife… and I have a joint bank account…:

    This bank account was opened in 2020 shortly after we got married. All sources (included and without limit), incomes will be deposited into this account:

    ·My wife’s wages (around $1400-$1500 a fortnight) and my wages (average about $1000 a week).

    ·Income tax returns.

    Both of us have equal access to the account. We share our finances. We use the money in the account to pay for, including but not limited to rent, clothes, foods, bills, insurances, sending money to my children in Vietnam, buying things online, etc.

    We share financial resources, joint liabilities, legal obligations as well as sharing daily household expenses.

19. The parties conceded at the hearing that they do not own any significant assets together and do not have any joint liabilities. In common with many members of the Vietnamese community in Australia, they prefer to transact in cash. This extended to the purchase of their cars, which they own in their own names and were paid for in cash. While this means that no weight can be given to this factor, I do not consider that it necessarily should be given weight against the existence of a genuine spousal relationship.

20. The material before the delegate, which comprised only the joint account statements for the period from June 2020 to 18 December 2020 obviously raised some questions as to the extent to which the parties had integrated their finances. Ms Tran’s payslips still showed that, as at May 2020 (shortly after the parties were married), her wages were being paid into one of her individual Commonwealth Bank accounts. However, for the majority of the period covered by the joint account statements, Ms Tran’s employment was suspended by the COVID lockdowns and she was in receipt of Centrelink JobKeeper and, later, NewStart payments. These were paid into the joint account. The joint account statements produced to the Tribunal indicate that, as Mr Nguyen’s statutory declaration claims, the parties’ wages and tax refunds have been paid into the joint account. The bank statements also show that all expected day-to-day household expenses are transacted through the joint account, including rent, grocery shopping, household bills and sundry purchases. I consider the joint account statements, and the parties’ personal evidence, indicate that the parties conduct their financial affairs in a way consistent with their being in a spousal relationship.

21. In so finding, I have taken into account the additional material supplied by Ms Tran which shows that there are significant financial transactions which do not involve Mr Nguyen. These are chiefly concerned with her arrangements with her children and the assets deriving from her previous relationships. Given that both parties have children from previous relationships and they are obviously concerned that their marriage should not affect their pre-existing obligations, I do not consider these matters to be in any way inconsistent with the financial aspects of the marital relationship.

    Nature of the household

22. In assessing the nature of the household, I have considered any joint responsibility for the care and support of children, the parties’ living arrangements, and any sharing of housework.

23. In his statutory declaration of 25 April 2024, Mr Nguyen stated:

    Currently, my wife and I are living happily together at our current rental house at 8 Rundle Road in Green Valley, NSW. The house has three bedrooms. Only the two of us live here. We have been living at this property since November 2022.

    From March 2020 until November 2022, we have lived at the following addresses:

    ·From September 2021 to November 2022:

    o16 Southdown Street in Miller, New South Wales

    oWe rented one bedroom from a three-bedroom house. We lived with the landlord.

    oWe paid $200 per week for rent.

    ·From March 20 22 September 2021:

    oUnit 13/1 Waterside Crescent in Carramar, New South Wales

    othe unit had two bedrooms and only two of us lived here.

    oMy wife owns this house. The unit had been paid off prior to our marriage.

    oWe moved out of this unit, so that [Ms Tran’s] son (Thompson) could move in and live with his girlfriend (Mika).

    My wife usually cooks, and I do the dishes after meals. We share the housework such as laundering, cleaning, and keeping the house tidy.

    We usually go shopping and for groceries on the weekend.

    In short, my wife and I share the responsibilities in taking care of the household.

24. Mr Nguyen’s timeline is supported by the household bills and other correspondence addressed to the parties, whether jointly or individually, at the addresses nominated in his statutory declaration.

25. Mr Nguyen’s claims about sharing the housework was supported by the evidence of Ms Tran, and by the statutory declaration of Phuong Nguyen Tran, who is a friend of the couple and a regular visitor to their home.

26. The evidence as to the arrangement under which Thompson occupies Ms Tran’s unit is supported by Thompson’s hand written statement, the solicitors’ letters, and Ms Tran’s individual bank accounts, which show regular rent payments from Thompson to her. I give this evidence a degree of weight as indicating that sacrifices have been made by both parties for the care and support of Ms Tran’s children, and also that the parties genuinely lived together.

27. On the basis of the evidence before me, I am satisfied that the parties’ household arrangements are consistent with their being in a genuine spousal relationship.

    Social aspects of the relationship

28. In assessing the social aspects of the relationship, I have considered whether the parties represent themselves to other people as being married to each other, the opinion of friends and acquaintances about the nature of the relationship, and any basis on which the parties plan and undertake joint activities.

29. In his statutory declaration of 25 April 2024, Mr Nguyen stated:

    Our relationship is well known to all friends, relatives, family members in Vietnam and Australia. Everyone, who noticed, should be able to state that we are husband-and-wife and that our relationship is genuine and ongoing.

    Occasionally, my wife and I attended at friends’ weddings, friend parties, died out with friends and relatives in Vietnam and Australia (the photos have already been submitted to the Department and the AAT).

    We are also declared as a couple with government agencies (income tax returns have also been submitted to the Department and the AAT).

    My wife and I have travelled together to Vietnam from July to August 2022 (for four weeks) to visit my family and friends.

30. In support of these claims, the parties submitted the form 888 statutory declarations listed above. They have also submitted a number of photographs, which are captioned and dated and show the couple in a variety of social settings. These impressed the Tribunal as appropriately chosen and convincing. They depict the parties engaged in identifiable social activities with close friends and family, both at home and at other venues and clearly attending major social events (for example the wedding of friends) as a couple.

31. On the basis of the evidence before me, I am satisfied that the parties consistently represent themselves to other people being married to each other, that their friends, relatives and acquaintances are aware of their marriage status and see them as committed to each other, and that they plan and undertake joint social activities consistently with being in a spousal relationship.

    Nature of the commitment

32. In assessing the nature of the parties’ commitment to each other, I have considered the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other, and whether they see the relationship as long-term.

33. In his statutory declaration of 25 April 2024, Mr Nguyen stated:

    During the trip I was in Australia on a visitor visa from 05 to 11/02/2020, I met my current wife, Tu at the Cabramatta Leagues club in Cabramatta when I went there for a dinner and karaoke with some of my Sydney friends. We met by chance. She was there with her mother, sister and some friend. We sat next tables to each other. My friend had known her from before. We chatted and became acquaintances. We sang karaoke together. We danced. I had a good time there that night.

    After that night, Tu and I got together a few more times. We were kind of dating. I liked her a lot and could sense the same coming from her, but there was nothing too serious about us at this stage as we were only trying to get to know each other.

    We kept in regular contact over the phone after I returned to Vietnam. We started feeling missing each other. We gained trust and confidence in each other. Tu asked me to come to Australia to see her. She told me I could stay at her unit that she had just bought.

    We re-met during my current visit to Australia. I was in Australia on 13/03/2020. She picked me up at the airport on my arrival. I stayed at her unit  .. ever since.

    We started dating and fell in love. We both felt the need in each other. We wanted to start a new life together. (Tu also had problems with her first marriage and has been divorced for over 10 years.) We both felt very happy when we were in each other’s company.

    I felt love, cares, and happiness in Tu.

    We decided to get married.

    On30/05/2020, Tu and I were officially married. Due to Covid-19 pandemic, we had a small wedding ceremony in Fairfield, New South Wales. We planned to have a wedding reception to pronounce our relationship to Tu’s family and our friends at a later date, when the social distancing restriction was lifted, but to this date, we have not done it yet due to our budget. However, everyone now knows us his husband-and-wife.

    Tu and I have since been recognised as spouses by all people who know us.

    We share and support each other in everything in life.

    We have discussed and we both wish to restart and build a happy family and our future together in Australia. I promised her to be a good husband and to be with her for the journey of our lives together as spouses.

    Our relationship is genuine, continuing and to the exclusion of all others.

    We have been living very happily together as spouses. We share things in life like any other married couple would.

    In July 2022, after the Covid-a9 international travel restrictions were lifted, Tu and I travelled to Vietnam together to visit my family and to introduce our relationship to family members and friends.

    Tu’s daughter just got married in April 2023 to her American citizen husband.  Tu and I wish to travel to visit her son-in-law and his family; and on the same time, we can also visit my elder sister who lives in the USA.

34. This narrative is well supported by the photographs and Ms Tran’s own evidence. The delegate was (perhaps understandably) sceptical about the rapid development of the relationship. However, I have made allowances for the unusual circumstances of the restrictions in place during the Covid-19 pandemic and do not consider the rapid development of the relationship to be implausible in those circumstances. In their oral evidence, both parties impressed me as comfortable and familiar with each other in a way that was consistent with their claims.

1. On the basis of the evidence before me, I am satisfied that the parties have been cohabiting in an exclusive relationship for some 4 ½ years. I am also satisfied that they draw a significant degree of companionship and emotional support from each other and that both of them see the relationship as long-term.

2. Accordingly, I am satisfied that Mr Nguyen and Ms Tran have a mutual commitment to a shared life to the exclusion of others, that they are in a genuine and continuing relationship, and that they have and continue to live together on a permanent basis.

3. On the basis of the above the Tribunal is satisfied that the requirements of s 5F(2) are met at the time the visa application was made.

4. Therefore the applicant meets cl 820.211(2)(a).

5. 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 820 visa.

   DECISION

6. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

   ·cl 820.211(2)(a) of Schedule 2 to the Regulations

   James Lambie
   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).