Nguyen (Migration)

[2023] AATA 4218

Nguyen (Migration) [2023] AATA 4218 (31 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Thi Thuc Anh Nguyen
Mr Duc Anh Khoa Nguyen

REPRESENTATIVE:  Mr Rodney Calhaem (MARN: 9581377)

CASE NUMBER:  1906605

HOME AFFAIRS REFERENCE(S):          BCC2018/1419850

MEMBER:Justin Meyer

DATE:31 July 2023

PLACE OF DECISION:  Melbourne

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 of Schedule 2 to the Regulations

·cl 820.221(1) of Schedule 2 to the Regulations

Statement made on 31 July 2023 at 10:12am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine de facto relationship – financial aspects – nature of the household – social aspects – nature of the commitment – relationship registered – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65, 360
Migration Regulations 1994 (Cth), rr 1.09A, 2.03A; 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 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 27 March 2018 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 delegate was not satisfied the applicant met cl 820.211 of Schedule 2 to the Regulations. Relevantly, the delegate was not satisfied that there was sufficient evidence to demonstrate that the applicant was the ‘spouse’ of her sponsor at the time of the application.

4. The applicant seeks review of the delegate’s decision. She was represented in relation to the review.

5. The applicant provided further information to the Tribunal in support of her claims in April 2022. This information, which was accompanied by a submission addressing each of the relevant criteria, was comprehensive, detailed and cogent.  The updated evidence included statutory declarations from parties, updated bank statements, statements from others, photographs.

6. The evidence and submissions provided by the applicant through her representative, strongly supported her claims. The submissions provided were clear, directed to the issues that required determination and were supported by, or referred to, specific evidence provided or already provided.

7. Accordingly, in reaching my decision the Tribunal did not consider a hearing to be necessary, 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.

8. For the following reasons, I have concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether visa applicant was the de facto partner of her sponsor at the time of the application and whether she continues to be so at the time of this decision.

   Whether the parties are in a spouse or de facto relationship

10. Clause 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 de facto partner of the sponsor who is an Australian citizen.

    Are the parties in a de facto relationship?

11. 'De facto partner' is defined in 5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s 5CB(2).

12. In forming an opinion whether they are in a de facto relationship consideration must be given 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 1.09A(3) which is attached to this decision. Each of the specific matters contained in reg 1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

13. The applicant had a previous de facto relationship in Vietnam from 1 July 2007 to 1 January 2008 and has one child from that relationship born 9 August 2008. The child is a secondary applicant on the basis that he is a dependent of the applicant.

14. The parties claim to have met for the first time on 30 January 2018 at the office of a matchmaking agent and the relationship started. On 20 March 2018 the sponsor moved in to live with the applicant at her house. On 27 March 2018, the applicant lodged a Partner (subclass 820/801) visa application. The parties claim to have lived together since 20 March 2018, a period of over five years.

    Evidence

    Financial aspects

15. The following evidence was provided to support the financial aspects of the relationship:

    
    Evidence before the Department
    
    

    ·Evidence of joint bank account. A letter from the ANZ bank dated 14/04/2018 confirming the parties have a joint account. The parties’ letter to the bank dated 14 April 2018 requesting direct credits to the joint account. A letter from ANZ Bank dated 14 February 2019 confirming the balance of the joint account as AUD10.46.

    Evidence before the Tribunal

    ·ANZ joint account details with new address listed and bank statements from 2019-2023.

    ·Receipt’s for items purchased jointly from 2019-2023 including:
    - television
    - washing machine
    - bed and mattress
    - laptop
    - various gifts including perfume, shoes and a watch

    ·Documents showing the applicant’s details added to the sponsor’s Linkt, RACV, vehicle registration and Optus plan.

    ·Water bill in both names at the new address dated 21 April 2020

    ·Gas bill in both names at the new address dated 17 April 2020
    
    

    ·Electricity bill in both names at the new address dated 1 May 2020
    
    

    ·Emails from sponsor to applicant 9 Dec 2019 explaining how to get information for her tax return and email from accountant 17 Dec 2019 noting that he has done both their returns.

16. Having regard to this evidence, I accept that the parties have shared their finances and household expenses. I am also satisfied that the applicant and sponsor jointly own assets and have certain joint liabilities, and this gives weight to a finding that there is a spousal relationship.

    Nature of the household

    Evidence before the Department included:

17. A joint tenancy:  an agreement dated 5 June 2018, valid until 4 June 2019 for a property in McKinnon as well as letters from the agent. There is a certificate of car registration issued to the applicant dated 22 November 2016 listing the address in McKinnon. There is an Optus invoice in the sponsor’s name dated September 2018 listing the address in McKinnon.
    
    

18. There is evidence of the sponsor’s address in the form of  a Driver’s Licence in the sponsor’s name listing address in Blackburn South. There is a  tax document for the sponsor dated June 2016 listing an address in Blackburn South. The sponsor provided a payslip dated February 2018, and March 2018 listing the address in Blackburn South.

19. Further details are

    ·Residential tenancy agreement in both parties’ names for Blackburn South from 24 July 2019 to July 2020 and email to both parties regarding tenant costs.

    ·BUPA Membership card with the names of the sponsor, the applicant and the secondary applicant and letters from BUPA addressed to the parties.

    ·School application from 2018 for the applicant’s son, noting both parties as parent contacts and letters from the school addressed to both the sponsor and applicant.

    ·A number of bills and invoices addressed to both parties at 5/5 Trevallyn Court Blackburn South VIC.

20. Based on the above evidence, I am satisfied that the applicants have established a joint household and share domestic responsibilities. The living arrangements of the persons are reflective of a joint household and I give this weight. While there were earlier delegate concerns about locations of the parties, I am satisfied that with the passage of time there has been much interaction between them and they have been living together.

    Social aspects of the relationship

    Evidence before the Department

    ·

    Limited photos of couple together during course of relationship.

    
    
    

    ·

    Christmas card to the parties claimed to be from the applicant’s sister.

    
    
    

    ·

    Cricket tickets

    
    
    

    ·

    Statutory declaration in support of ongoing relationship from sponsor’s brother dated 28 February 2019

    
    
    

    ·

    Statutory declaration in support of ongoing relationship from sponsor’s former co-worker dated 23 March 2018

    
    
    

    ·

    Statutory declaration in support of ongoing relationship from applicant’s sister who lives in Germany dated 17 February 2019

    
    
    

    ·

    Statutory declaration in support of ongoing relationship from applicant’s sister who lives in Canada dated 17 February 2019

    
    
    

    ·

    Statutory declaration in support of ongoing relationship from applicant’s ex-flatmate dated 16 February 2019

    
    
    

    ·

    Statutory declaration in support of ongoing relationship from applicant’s ex-neighbour dated 22 March 2018

    
    
    

    ·Statutory declaration in support of ongoing relationship from applicant’s family friend dated 24 March 2018

    Evidence before the Tribunal

    ·

    A large number of photographs including:

    
    
    

    - a necklace claimed to be a birthday gift from the sponsor to the applicant in 2019

    
    

    - applicant’s son playing with the sponsor, the sponsor’s brother and children

    
    

    - selfie of the applicant at the sponsor’s parent’s house for lunch

    
    

    - sponsor’s family

    
    

    - selfies of the applicant in a car with the sponsor

    
    

    - selfies of the applicant with the sponsor’s father and nieces in the background

    
    

    - the sponsor and the secondary applicant gardening

    
    

    - two selfies of the applicant with the sponsor and the secondary applicant gardening

    
    

    - theatre with the applicant, secondary applicant, sponsors sister in law and her children.

    
    

    - selfie picture of the applicant in a car with the sponsor going to sponsor’s brother’s house for Melbourne Cup lunch

    
    

    - applicant’s son playing with the sponsor’s family on Melbourne Cup day

    
    

    - a bracelet and necklace claimed to be birthday gifts for the applicant from the sponsor’s mother in 2019.

    
    

    - the applicant with flowers and a bracelet claimed to be a Christmas gift from the sponsor

    
    

    - various photos of the parties at different shopping centres

    
    

    - three photos of the secondary applicant’s birthday party at the sponsor’s parents’ house in 2019

    
    

    - the sponsor and the applicant’s son at a social gathering

    
    

    - selfie picture of the applicant shopping with the sponsor in the background

    
    

    - selfie picture of the applicant with the sponsor and secondary applicant at a restaurant in a shipping centre.

    
    

    - various photos of applicant’s son with sponsor on street, at a football game, at shopping centre and at home.

    
    

    - photos of the applicant and sponsor washing dishes.

    
    

    - photos of the parties at school events.

    (It is noted that most of the photographs have been taken by the applicant presumably with the purpose of supporting the visa application. There are limited photographs taken by anyone else or photographs which are not ‘selfies’.)

    ·Copies of text invitations to events and cards and screenshots of Viber messages and calls presumably with family.

    ·

    Further statutory declaration in support of ongoing relationship from sponsor’s brother dated 27 March 2019

    
    
    

    ·

    Further statutory declaration in support of ongoing relationship from applicant’s sister who lives in Germany dated 23 March 2019

    
    
    

    ·

    Further statutory declaration in support of ongoing relationship from applicant’s sister who lives in Canada dated 31 March 2019

    
    
    

    ·

    Statutory declaration in support of ongoing relationship from applicant’s family friend dated 18 February 2019

    
    
    

    ·Statutory declaration in support of ongoing relationship from applicant’s father dated 22 March 2019

21. There is significant evidence of the applicants undertaking joint social activities. I also accept that there is evidence before the Tribunal that the relationship between the visa applicant and the review applicant is known to friends and family and is socially recognised.

    Nature of the persons’ commitment to each other

    Evidence before the Department

    ·Relationship Certificate registered on 3 July 2018

    Evidence before the Tribunal

    ·The above declarations referred to the commitment of the parties to each other.

22. It is evident from the above that the parties have a commitment to each other, taking to account a long duration of the relationship of some five years, living together over that long period, and companionship and emotional support that the persons draw from each other. I am satisfied that they see the relationship as a long term one.

23. Based on the information before me, and there is no evidence to the contrary, I am satisfied that the relationship between the applicant and the sponsor is genuine and continuing. The Tribunal is satisfied, based on the information provided and the detailed submissions, that the applicant and sponsor have a mutual commitment to a shared life to the exclusion of others. Furthermore, there is no evidence to suggest that the applicant and the sponsor live separately and apart on a permanent basis.

    Conclusion

24. As already noted, the applicant, through her representative, has provided cogent relevant evidence in support of her claim that she is in a genuine de facto relationship with the sponsor and has been in such a relationship from the time that they committed to each other in March 2018. Further, there is not a 12-month relationship requirement as the de facto relationship is a relationship that is registered under a prescribed law of a State (per reg 2.03A(4)(a) and (5)).

25. The statements and documentary evidence provided, including those from the applicant and the sponsor, were detailed. I found them to be plausible and persuasive.

26. On the basis of the above I am satisfied that the requirements of s 5CB (2) are met at the time the visa application was made and the time of this decision.

27. 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

28. 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 of Schedule 2 to the Regulations; and

    ·cl 820.221(1) of Schedule 2 to the Regulations.

    Justin Meyer
    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).