Nguyen (Migration) - [2023] AATA 4158

Nguyen (Migration) [2023] AATA 4158 (6 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Thi Nguyet Nguyen
[Second-named applicant]
CASE NUMBER:  1923790
HOME AFFAIRS REFERENCE(S):          BCC2017/4771221
MEMBER:Edward Howard
DATE:6 October 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first-named applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211(2) of Schedule 2 to the Regulations
·cl 820.221(1) of Schedule 2 to the Regulations

Statement made on 06 October 2023 at 1:58pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – validly married – financial, household and social aspects of relationship and nature of commitment – limited documentary evidence provided to department, and further evidence to tribunal – duration and activities of relationship – supporting statements from family and friends – decision made without hearing necessary – member of family unit – adult child in own relationship and not living with visa applicant – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 360
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 820.211, 820.221
CASES
Ally v MIAC [2008] FCAFC 49
Jayasinghe v MIMA [2006] FCA 1700
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first-named applicant (the applicant) applied for the visa on 13 December 2017 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. 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.
The Tribunal has considered all of the evidence, which includes extensive documentary evidence and submissions provided to the Tribunal and is satisfied that a decision can be made without the need for a Hearing, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
The first-named visa applicant is Ms Thi Nguyet Nguyen, aged 60 years, a citizen of Vietnam and the sponsor is Mr Philip Cavendish Eaton,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nguyen (Migration)

Details

AGLC: Nguyen (Migration) [2023] AATA 4158
Case: [2023] AATA 4158
Decision Date: 6 October 2023

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, subclass 820, made by Ms Thi Nguyet Nguyen, a citizen of Vietnam, sponsored by Mr Philip Cavendish Eaton, an Australian citizen. The parties met in April 2017, married in November 2017, and subsequently lived together in Queensland. They lodged their visa application in December 2017. The Tribunal, presided over by Edward Howard, was tasked with reconsidering the application.

The primary legal issues before the Tribunal were whether Ms Nguyen was the spouse or de facto partner of Mr Eaton at the time of the visa application and at the time of the decision, as required by clauses 820.211(2)(a) and 820.221 of the Migration Regulations 1994. This involved assessing the genuineness and continuation of their relationship, considering financial, household, and social aspects, as well as the nature of their commitment to each other. The Tribunal also considered the status of the second-named visa applicant, Ms Nguyen's adult daughter, as a member of the family unit.

The Tribunal reasoned that evidence of events occurring after the visa application date could be considered if it logically demonstrated the existence or non-existence of the relationship at the time of application. It noted that limited documentary evidence was initially provided to the Department of Home Affairs, with further evidence subsequently furnished to the Tribunal. After reviewing all the evidence, including supporting statements and evidence of the parties' cohabitation and mutual support for over six years, the Tribunal was satisfied that Ms Nguyen and Mr Eaton had a genuine and continuing relationship, demonstrating a strong, long-term commitment to a shared life as a married couple. The Tribunal also found that the second-named visa applicant, Ms Nguyen's daughter, was not a member of the family unit as she was in her own relationship and cohabiting with another person.

Consequently, the Tribunal remitted the application for a Partner (Temporary) (Class UK) visa, subclass 820, with a direction that the first-named visa applicant, Ms Nguyen, met the criteria under clauses 820.211(2) and 820.221(1) of Schedule 2 to the Regulations. The matter was to be reconsidered by the Minister regarding any remaining criteria for the visa.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. BACKGROUND The first-named visa applicant is Ms Thi Nguyet Nguyen, aged 60 years, a citizen of Vietnam and the sponsor is Mr Philip Cavendish Eaton, aged 71 years, an Australian citizen. The parties first met on 30 April 2017, with the relationship developing after that time, culminating in their marriage on 19 November 2017. The parties lodged a valid application for a subclass 820 visa and subclass 801 visa, on 13 December 2017. The visa applicant has a daughter who is the second-named visa applicant to this application. Since their marriage, the parties have lived at their residence at Glenwood, Queensland.ISSUES AND LAW There is a two-stage process for onshore Partner visas. A visa applicant must first hold a provisional visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a permanent visa. The grant of a permanent visa would generally depend on whether the relationship has continued for a period of at least two years. In this matter, the Tribunal is considering the first, temporary stage. Where the Tribunal is considering a criterion that requires the definition of spouse or de facto partner to be met at the time of the visa application, the information supplied in relation to the reg 1.15A(3) matters may relate to circumstances after the time of application. In forming a view of the relationship at the time of application, the Tribunal must consider all relevant evidence, which may include evidence of events after the date of application insofar as it assists in the task of determining whether the visa applicant and the sponsor were in a partner relationship at the time of the application. Evidence of events after the visa application is relevant if it tends logically to show the existence or non-existence of facts relevant to the issue to be determined.[1] The Tribunal observes this to be a matter where the visa applicant submitted limited documentary evidence in support of his visa application to the Department of Home Affairs and then furnished the Tribunal with further evidence that was unavailable to the primary decision maker.[1] Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139 at [24] per Deane J which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time; and see also Bretag v IRT [1991] FCA 582 at [13]–[15]. The issue in the present case is whether at the time of the visa application and the time of this decision, the visa applicant is the spouse or de facto partner of the sponsor.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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

From the evidence provided, the Tribunal accepts that the parties have supported and cared for each other over a period of more than six years. The evidence supports a finding that the parties are in a genuine and continuing relationship, showing a strong commitment to each other and clearly see the relationship as long-term. The Tribunal weighs the nature of the commitment in favour of the visa applicant.Overall Conclusions Having carefully considered all the evidence and for the reasons above, the Tribunal is satisfied that at the time of application, the parties had a mutual commitment to a shared life as a married couple to the exclusion of all others; that the relationship between them is genuine and continuing; and that they live together. The Tribunal is therefore satisfied the requirements of section 5F of the act were met the time of the visa application. The Tribunal is further satisfied that at the time of this decision the parties continue to have a mutual commitment to a shared life to the exclusion of all others and that the relationship between them has been and remains genuine and continuing. The Tribunal is also satisfied that they have lived together and not separately and apart on a permanent basis since their marriage. The Tribunal is therefore satisfied the requirements of section 5F(2) of the Act are met at the time of this decision. The Tribunal is therefore satisfied that the parties’ relationship fulfilled the criteria contained in clause 820.211(2) at the time the visa application was made and at the time of this decision. Pursuant to clause 820.221(1), in order to be eligible for the grant of a subclass 820 (UK) visa, the visa applicant must also continue to meet the requirements of clause 8.820.211(2) at the time of this decision. Having regard to the evidence before the Tribunal, the Tribunal is satisfied that the visa applicant continues to meet the requirements of clause 820.211(2), hence satisfying the criteria in clause 820.221(1). Therefore, the Tribunal finds that the first-named visa applicant meets the requirements of clauses 820.211(2) and 820.221(1). 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.The second-named visa applicant The Tribunal notes that the delegate refused the second-named visa applicant on the basis that the first-named visa applicant had been refused. The second-named visa applicant is currently [age] years old, her date of birth being [date]. Given her age, the second-named visa applicant is required to be a dependent of the family head (the sponsor) or of the spouse of the family head (the first-named visa applicant) in order to be considered a member of the family unit, per Regulation 1.12(2)(b)(iii). In this regard, the Tribunal refers the department to the evidence of [Mr A], by his statutory declaration dated 26 April 2023. [Mr A] states that he is in a relationship with the second-named visa applicant and that this has been an ongoing relationship, including cohabiting together since 2020. [Mr A] states that he and the second-named visa applicant reside in Victoria although they regularly visit the first named-visa applicant and sponsor in Queensland.

Ratio Decidendi

Legal Principle Established

The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the first-named visa applicant meets the following criteria for a subclass 820 (Partner) visa:·cl 820.211(2) of Schedule 2 to the Regulations·cl 820.221(1) of Schedule 2 to the RegulationsEdward HowardMemberATTACHMENT - Extract from Migration Regulations 19941.15A 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).