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

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 applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211.

4. 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.

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

   BACKGROUND

6. 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.

7. The parties first met on 30 April 2017, with the relationship developing after that time, culminating in their marriage on 19 November 2017.

8. 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.

9. Since their marriage, the parties have lived at their residence at Glenwood, Queensland.

   ISSUES AND LAW  

10. 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.

11. 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].

12. 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

13. 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.

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 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?

15. The parties provided a Certificate of Marriage, confirming their marriage on 19 November 2017. 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 – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

16. The evidence of the parties is that the sponsor is 71 years old and retired from work, he is in receipt of an aged pension. The visa applicant works part-time in a vegetable packing role  at a local business near to where the parties reside.

17. The parties have provided extensive evidence from their joint bank account with Heritage Bank extending over a five-year period end showing the receipt of their income and payment of various expenses. The evidence confirms that the parties pool their resources and share the regular household expenses.  

18. The Tribunal is satisfied on the evidence that the parties pool their resources for the day-to-day household expenses and other financial commitments. The Tribunal is satisfied that the visa applicant contributes to the financial relationship of the marriage through her own part time employment. The Tribunal weighs the financial aspects of the relationship in favour of the visa applicant.

    Nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

19. The parties have lived together as a married couple since November 2017. They currently live in a residence owned by the sponsor in Glenwood, Queensland.

20. The evidence of the parties is that they jointly contribute to all aspects of their household.

21. The Tribunal is satisfied that the parties’ household and living arrangements are consistent with that of a married couple in a genuine relationship. The Tribunal weighs consideration of the household aspects of the relationship in favour of the visa applicant.

    Social aspects of the relationship – including whether 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 persons plan and undertake joint social activities.

22. The evidence of the parties is that they regularly socialise together and with family members and friends. They have provided photographic evidence of social activities in the company of family members and friends. They have also included photographs of their wedding ceremony.

23. The parties regularly spend time together travelling and enjoy outdoor activities.

24. The Tribunal is in receipt of a number of statements of support from family and friends, attesting to the regular interaction with the parties and their opinion of them as a genuine couple.

25. Having considered the evidence, the Tribunal is satisfied that the parties represent themselves to other people as being married to each other, that they enjoy the favourable opinion of friends and family concerning their relationship and that they plan and undertake joint social activities. The Tribunal weighs the social aspects of the relationship in favour of the visa applicant.

    Nature of persons' commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

26. The parties first met in April 2017, their relationship developing over the following months and their marriage occurring in November 2017.

27. Since their marriage the parties have lived together at the residence in Glenwood, Queensland, which is owned by the sponsor.

28. The visa applicant works part-time and the sponsor is in receipt of a Centrelink aged pension. The evidence supports their submission that they both contribute to the financial aspects of the relationship, pool their resources and share their expenses.

29. The evidence provided supports their submission that they have an active social life as a couple and in the company of friends and family members, many of whom have known the couple for a long period of time, attended their wedding and remain close friends.

30. 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

31. 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.

32. 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.

33. 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.

34. 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).

35. Therefore, the Tribunal finds that the first-named visa applicant meets the requirements of clauses 820.211(2) and 820.221(1).

36. 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

37. The Tribunal notes that the delegate refused the second-named visa applicant on the basis that the first-named visa applicant had been refused.

38. 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).  

39. 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.

40. Further, the Tribunal refers the Department to the evidence of [Mr B], by his statutory declaration dated 26 April 2023. [Mr B] states that he is aware that the second-named visa applicant lives in Melbourne and is in full-time employment.

    DECISION

41. 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 Regulations

    Edward Howard
    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).