Nguyen (Migration)

Nguyen (Migration) [2023] AATA 2889 (30 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Thi Phuong Nhung Nguyen
REPRESENTATIVE:  Mr Michael Cai, Challenge Legal
CASE NUMBER:  1906317
HOME AFFAIRS REFERENCE(S):          BCC2017/4837459
MEMBER:Michael Ison
DATE OF ORAL DECISION:  30 August 2023
DATE OF WRITTEN STATEMENT:         31 August 2023
PLACE OF DECISION:  Melbourne
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 820.211 of Schedule 2 to the Regulations; and
·cl 820.221 of Schedule 2 to the Regulations.

Statement made on 31 August 2023 at 3:07pm
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 – oral and extensive documentary evidence – no statutory declarations from family or friends provided on advice of agents – separate travel for family and personal reasons – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 820.211(2)(a), 820.221
CASE
He v MIBP [2017] FCAFC 206
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 applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant in this review is Ms Thi Phuong Nhung Nguyen, who is 31 years old and is a national of Vietnam. Ms Nguyen is referred to in these reasons as the applicant.
The applicant claims to be in a genuine spousal relationship with her husband, who is also her sponsor for the Partner visa application lodged on 18 December 2017. The sponsor is Mr Duc Huy Bui, who was born in Australia, is 32 years old and is an Australian citizen. Mr Bui is referred to as the sponsor in these reasons.
The applicant first arrived in Australia on 5 March 2017 as the holder of a Border (Temporary) (Class TA) (Subclass 773) visa to attend her maternal grandmother’s funeral. That visa was valid to 10 March 2017 when the applicant returned to Vietnam.
On 30 October 2017 the applicant was granted an offshore Visitor (Class FA) (Subclass 600) visa. On 11 November 2017 the applicant entered Australia as the holder of that Visitor visa which was valid to 11 February 2018.
At the time of applying for the Partner visa the applicant was granted a Bridging A (Subclass 010) visa with no conditions from Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations) attached.
The applicant applied for the Partner visas on 18 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 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.
On 30 January 2020 the applicant was granted a Bridging B (Subclass 020) visa with no conditions from Schedule 8 to the Regulations attached. The applicant continues to hold the Bridging B visa at the time of this decision.
The primary decision
The applicant provided the Tribunal with a copy of the decision made on 28 February 2019 by a delegate of the Minister to refuse the application for a Partner visa.
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.211(2)(a) of Schedule 2 to the Regulations because the delegate was not satisfied on the evidence before them that the applicant and sponsor were in a genuine spousal relationship at the time of application for the Partner visa.
The Tribunal hearing
The applicant appeared before the Tribunal on 30 August 2023 to give evidence and present arguments, in person.
The Tribunal also received oral evidence from the sponsor Mr Bui who also appeared in person.
The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in this review by Mr Michael Cai of Challenge Legal, immigration lawyer. Mr Cai is referred to in these reasons as the applicant’s representative or the representative. The representative attended the Tribunal hearing in person.
The applicant’s Australian citizen sister and the sponsor’s paternal aunt attended the Tribunal hearing in support of the parties but were not called to give evidence.
At the commencement of the Tribunal hearing the Tribunal explained the role of the interpreter as an aid to communication and asked the applicant whether she could understand the interpreter and whether she had any objection to the use of the interpreter retained by the Tribunal. The applicant indicated she could understand the interpreter and did not have any objection to the interpreter retained by the Tribunal. The Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal also explained the role of the applicant’s representative during the hearing. The Tribunal informed the applicant that it would seek submissions from both the applicant and the representative toward the end of the Tribunal hearing on any matter they considered relevant to the applicant’s review.
Pre-hearing submissions
The Tribunal received several substantial submissions on behalf of the applicants’ from the representative prior to the Tribunal hearing, with the main, but not all, documents attached to these submissions summarised below.
On 1 December 2021, 21 October 2022, 4 February 2023 and 15 August 2023 the parties, via their representative, provided the Tribunal with over 800 pages of additional documents including: (1) a statement from the representative in response to the questions of the Tribunal and the four aspects of the parties relationship referred to in reg 1.15A; (2) home loan contract dated 19 September 2019 in both names from the Commonwealth Bank of Australia (CBA) showing their current residential address in Elizabeth St, St Albans; (3) CBA home loan statements for the period 22 October 2019 to 30 June 2023; (4) joint CBA Smart Access bank statements for the period 19 September 2019 to 30 June 2023; (5) Joint Westpac Choice bank statements for the period 10 August 2022 to 10 July 2023; (6) utility bills including electricity, gas, internet, water, Vodafone bills, car insurance and Bupa health insurance payments covering the period 2018 to July 2023 showing the parties moved from Montpellier Drive, Hillside to their current residential address; (7) various tax invoices, receipts for furniture, spectacles, clothing, licence and registration renewals for both parties at both addresses; (8) approximately 68 unannotated and 20 annotated colour photos of the parties as a couple, with family and friends, in various settings; (9) screen captures from the parties respective superannuation accounts showing they have listed each other as their spouse and 100% beneficiary; and (10) tax returns of the applicant from 2019 to 2023 and tax returns of the sponsor from 2018 to 2023 which all list each other as their spouse.
The Tribunal confirmed with the applicants’ representative at the commencement of the Tribunal hearing that these were all of the submissions provided to the Tribunal.
The Tribunal also engaged in other correspondence with the applicants and their representative in relation to administrative matters associated with this review.
Tribunal decision
The Tribunal made an oral decision in this review at the conclusion of the Tribunal hearing on 30 August 2023, with written reasons to be provided later. The decision of the Tribunal was to remit the application of the applicant for a Partner visa back to the Department for reconsideration with relevant directions.
The following are the written reasons of the Tribunal.
Consideration of claims and evidence
The issue in the present case is whether the applicant is in a genuine spousal relationship with her husband, the sponsor, as that is defined in s 5F of the Act when considering the matters set out in reg 1.15A(3) of the Regulations as required by clauses 820.211(2)(a) and 820.221 of Schedule 2 to the Regulations.
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.
‘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?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant provided the Department with a copy of a marriage certificate showing that she and the sponsor were married on 19 November 2017 in Springvale South and that marriage was solemnised in accordance with the requirements of the Marriage Act 1961 (Cth). On the evidence before the Tribunal, the Tribunal finds 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?
The Tribunal has considered the evidence that was provided with the primary application and has the benefit of additional oral evidence received at hearing from the applicant and sponsor and the substantial documentary evidence that has been submitted to the Tribunal since the primary decision was made, including on 1 December 2021, 21 October 2022 and 15 August 2023.
Background
The applicant claims the background to and formation of her relationship with the sponsor is as follows:
·The applicant was introduced to the sponsor by her sister giving her the sponsor’s telephone number;
·The applicant and sponsor first began communicating in December 2016 and continued communicating almost daily by telephone or internet based communications;
·On 11 February 2017 the sponsor travelled to Vietnam and met the applicant in person for the first time, staying in Vietnam for one week meeting the applicant’s family and sightseeing together;
·On 14 February 2017 the sponsor asked the applicant to be his girlfriend and the applicant accepted;
·When the sponsor was leaving Vietnam on 18 February 2017 at the airport he asked the applicant to marry him and the applicant accepted his proposal;
·On 5 March 2017 the applicant, accompanied by her aunts, travelled to Australia for the funeral of the applicant’s maternal grandmother. The applicant spent five days in Australia, returning to Vietnam on 10 March 2017;
·On 20 July 2017 the sponsor travelled to Vietnam, returning to Australia on 28 July 2017. During this visit to Vietnam the applicant and sponsor held a formal engagement in front of family and friends on 21 July 2017;
·On 11 November 2017 the applicant travelled to Australia on a Tourist visa;
·On 19 November 2017 the applicant and sponsor were married in front of family from both sides and friends with a reception held at a restaurant in St Albans attended by approximately 70 people;
·The applicant and sponsor initially lived at Montpellier Drive in Hillside, Victoria in a house owned by the applicant’s sister;
·In late 2019 the applicant and sponsor purchased their own home in Elizabeth Street, St Albans in Victoria moving into that property in November 2019;
·The parties were granted a loan from the CBA in their joint names, purchasing their home subject to a 30-year mortgage in joint names;
·Since November 2019 the parties have resided together in Elizabeth Street, St Albans;
·The applicants have provided electricity, gas, water, internet and mobile phone bills in their joint names addressed to the St Albans property since October 2019; and
·The applicant has also provided the documents referred to in paragraph 16 of these reasons in joint and individual names addressed initially to the Hillside property and since November 2019 the St Albans property.
The Tribunal has considered all the circumstances of the relationship of the applicant and sponsor, including the matters set out in s 5F of the Act and reg 1.15A as follows.
Financial aspects of the relationship – including joint ownership of real estate or other major assets; any joint liabilities; the extent of any pooling of financial resources, especially in relation to major financial commitments; any legal obligations one party owes to the other party; the basis of any sharing of day-to-day household expenses.
The applicant has provided the Tribunal with documents showing the parties have purchased a unit in St Albans and have a mortgage to repay the loan taken with the CBA for the purchase of that property, with the mortgage being in joint names. The mortgage was taken out in October 2019 and the parties have provided evidence of their monthly mortgage payments since then. The Tribunal accepts this evidence and finds the matters of the joint ownership of real estate and major financial commitments support a finding that the parties are in a genuine spousal relationship.
There is no evidence before the Tribunal that the applicant and sponsor owe legal obligations to each other. This matter is neutral and neither supports nor weighs against a finding that the parties are in a genuine spousal relationship.
The applicant provided the Tribunal with detailed bank statements for their three joint bank accounts. During the Tribunal hearing the applicant told the Tribunal the sponsor also has a separate credit card account which they do not currently use and for which she does not have a companion card. The sponsor in his evidence, separately given, did not initially recall this bank account but when prompted gave evidence that he does not use the account much these days and it only remains open because there is a small amount of credit he has not repaid yet. The Tribunal accepts this evidence.
The Tribunal discussed with both the applicant and sponsor how they manage their financial affairs and day-to-day household expenses including who and how household bills are paid for, and their various bank accounts used.
It is evident to the Tribunal, supported by the consistent oral evidence of the applicant and sponsor, that both of their incomes (for the applicant from two part-time jobs) are paid into their joint Westpac bank account and that this account is used to pay for most household bills such as utilities. There are also considerable transactions on the parties’ joint Commonwealth bank account including for groceries and personal interests.
The Tribunal is satisfied from the oral evidence of the parties, separately given, supported by the extensive documentary evidence they provided to the Tribunal, that the parties have pooled their financial resources in a manner consistent with them being in a genuine spouse relationship. The Tribunal also finds the parties’ use their pooled financial resources to meet the day-to-day expenses of their household in a manner consistent with them being in a genuine spouse relationship.
The Tribunal finds that overall, the matters in relation to the financial aspects of the parties relationship support a finding that they are in a genuine spousal relationship.
Nature of the household – including any joint responsibility for the care and support of children; the parties' living arrangements; and any sharing of responsibility for housework.
The applicant and sponsor do not have any children of their own or responsibility for the care and support of anyone else’s children. This matter is neutral and neither supports nor weighs against a finding that the applicant is in a genuine spouse relationship with the sponsor.
The Tribunal discussed in detail with the applicant and sponsor their living arrangements and how they share responsibility for housework. Their evidence in this regard was overall very consistent but not identical, with some inconsistencies but not on matters or in a manner that caused the Tribunal concern about the genuineness of their relationship.
The applicant and sponsor’s consistent oral evidence is that they purchased a two story, three-bedroom townhouse in November 2019 and have lived there as a married couple since, without anyone else living with them. They were able to describe internal aspects of the layout of their home and also their living arrangements in detail. They gave consistent evidence they have two dogs and share a motor vehicle, also giving consistent evidence about when the motor vehicle previously registered to the sponsor was sold. The sponsor and applicant were able to give credible evidence about each other’s employment and incomes and specific details such as who cooks when and why.
Their evidence about who does what household chores and their general routines were consistent but not identical and the Tribunal found their evidence about their household and sharing of housework to be credible.
The Tribunal finds that the matters of the parties’ living arrangements and sharing of housework support a finding they are in a genuine spouse relationship, as does the matter of the nature of the parties’ household overall.
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.
Apart from 20 annotated photographs provided to the Tribunal in August 2023 and earlier photographs that were not annotated, there was very little evidence before the Tribunal about the social aspects of the relationship of the applicant and sponsor since the December 2017 and August 2018 statutory declarations of the applicant’s sister and the sponsor’s father.
The Tribunal is satisfied from the photographic evidence and the oral evidence of the applicant and sponsor that they represent themselves to other people as being married to each other. The photographs reveal a large number of people attended their traditional Vietnamese engagement party in July 2017 held in Vietnam and approximately 70 people attended their wedding held in November 2017 in Australia. This matter supports a finding the parties are in a genuine spouse relationship.
The lack of any recent statutory declarations or letters of support from members of either the applicant’s or sponsor’s families and the complete absence of any statutory declarations or letters of support from mutual or even separate friends, work colleagues or acquaintances was a significant gap in the evidence presented to the Tribunal. The applicant and sponsor both gave evidence that they relied on the advice of their previous and current migration lawyers as to what information to submit to the Department and to the Tribunal. The Tribunal accepts this evidence. The lack of evidence in relation to the opinion of friends and acquaintances about the nature of their relationship causes the Tribunal to find that this matter does not support a finding the parties are in a genuine spouse relationship.

The applicant and sponsor gave separate but consistent evidence of the social activities they undertake together as a married couple and this evidence is supported by the extensive photographic evidence provided to the Department and the Tribunal.
The Tribunal obtained the government movement records of both the applicant and sponsor. These records show all departures from and arrivals back to Australia. Their movement records reveal that since becoming married:
·The applicant and sponsor travelled overseas together on 15 February 2020, returning to Australia on 20 February 2020;
·The applicant travelled overseas on her own on 1 March 2020, returning on 20 March 2020; and
·The sponsor travelled overseas on his own on 8 April 2023, returning on 18 April 2023.
The applicant explained to the Tribunal in her oral evidence that in February 2020 she and the applicant went to Bali for a holiday but then her father had a stroke in Vietnam, and she returned to Vietnam in March 2020 but they could not afford and the sponsor could not get leave to accompany her. The applicant told the Tribunal that in April 2023 the sponsor went to Vietnam for a holiday when changing jobs because he had had a stressful period in his previous job and used his unused leave from that job to go on leave. The applicant told the Tribunal that the sponsor spent a couple of days staying with her family during this trip.
The sponsor gave credible evidence of the parties joint and separate overseas travel that was consistent with the evidence of the applicant, although not all details were identical, although critical details such as the reasons for travel were consistent.
The Tribunal finds that the matter of the basis on which the parties plan and undertake social activities supports a finding that they are in a genuine spouse relationship.
The Tribunal finds that overall, the matters associated with the social aspects of the parties relationship support a finding that they are in a genuine spouse relationship.
Nature of persons' commitment to each other – including the duration of their 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 a long-term one.
The evidence before the Tribunal is that the applicant and sponsor first met by telephone in December 2016, have been married since November 2017, have cohabited since then including in their own home since November 2019. The Tribunal finds that matters of the duration of their relationship and length of time they have lived together support a finding they are in a genuine spouse relationship.
The Tribunal discussed at length with both the applicant and the sponsor during the Tribunal hearing the degree of companionship and emotional support they draw from each other. The applicant and sponsor gave separate, non-identical but consistent evidence of the emotional support they provide to and receive from each other, their future plans, their attempts to commence a family and why they delayed in starting those attempts, what they each value as a person and like about the others’ values.
The applicant and sponsor gave evidence that convinced the Tribunal of their knowledge and circumstance of each other’s families and individual family members, importantly including the sponsor’s estrangement from his birth mother as a child and the reasons for this. The Tribunal found their respective evidence in this regard to be spontaneously and credibly given.
Both the applicant and sponsor were strongly of the view their relationship is a long-term one and were able to articulate in meaningful and somewhat emotional terms what it would mean to each of them and what they would do if the applicant was not granted the Partner visa. The Tribunal found aspects of their evidence in this regard to be the most compelling evidence about the relationship of the applicant and sponsor.
The Tribunal finds that each of the matters associated with and overall the matter of the nature of the applicant’s and sponsor’s commitment to each other supports a finding they are in a genuine spouse relationship.
Any other circumstances of the relationship.
The Tribunal asked both the applicant and the sponsor toward the end of their respective evidence whether there were any other circumstances of their relationship they wanted to bring to the Tribunal’s attention. Neither did so.
Conclusion
The Tribunal finds that when considering the matters in reg 1.15A(3) and the overall circumstances of the relationship of the applicant and sponsor that they were in a genuine spouse relationship at the time of applying for the visa and remain in a genuine spouse relationship at the time of this decision.
Overall, the Tribunal is satisfied at the time of application for the Partner visa and at the time of this decision that the applicant and sponsor are married to each other under a marriage that is valid for the purposes of the Act, have a mutual commitment to a shared life as a married couple to the exclusion of all others, their relationship is genuine and continuing and they have and continue to live together.
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 and at the time of this decision.
Other time of application and time of decision visa criteria
Having reviewed the evidence on the Department file and the oral and written evidence provided to the Tribunal the Tribunal is satisfied:
·The applicant is sponsored by the applicant’s spouse who has turned 18 (cl 820.211(2)(c));
·The applicant satisfies relevant Schedule 3 criteria (cl 820.211(2)(d));
·The applicant’s sponsor is not prohibited from being a sponsoring partner (cl 820.211(2B);
·The sponsor’s sponsorship of the applicant is approved and remains in force (cl 820.221(4)); and
·The limitations on approval of the sponsor’s sponsorship under regulations 1.20J, 1.20KA and 1.20KB are either met by the sponsor or do not apply in the circumstances of this review.
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
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 of Schedule 2 to the Regulations; and
·cl 820.221 of Schedule 2 to the Regulations.
Michael Ison
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).

[2023] AATA 2889

30 August 2023

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