NGUYEN (Migration)

[2023] AATA 2173

NGUYEN (Migration) [2023] AATA 2173 (29 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MINH TAI NGUYEN

REPRESENTATIVE:  Ms Jennifer Nguyen (MARN: 2117717)

CASE NUMBER:  1835431

HOME AFFAIRS REFERENCE(S):          BCC2016/2858430

MEMBER:Deputy President J.L Redfern PSM

DATE:29 June 2023

PLACE OF DECISION:  Sydney

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(1) of Schedule 2 to the Regulations.

Statement made on 29 June 2023 at 2:37pm

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

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 360
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cl 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, Mr Minh Tai Nguyen, applied for the visa on 29 August 2016 on the basis of his relationship with his sponsor, Ms Teresa Phuong Tran.

3. The application was refused on 21 November 2018 on the basis that the delegate was not satisfied the applicant met cl 820.211 of Schedule 2 to the Regulations because there was said to be insufficient evidence to demonstrate the applicant was the ‘spouse’ of his sponsor at the time of the application. The applicant seeks review of the delegate’s decision. He is represented in relation to the review.

4. In December 2022, the Tribunal undertook outreach to obtain updated information from the applicant, which was provided on 19 December 2022. As a result of this outreach the applicant provided updated bank statements, correspondence from the applicant’s landlord, taxation returns and Centrelink documents, details of joint travel, photographs and documents said to evidence the joint ownership of assets. I was unable to make a favourable decision on the basis of the material and scheduled the matter for hearing on 20 June 2023. Prior to the hearing, the applicant provided extensive material in support of his claims, including updated statements from the visa applicant and the sponsor and numerous statements from family and friends, both in Australia and overseas, about the nature and extent of the relationship between the visa applicant and the sponsor. The visa applicant’s lawyer also provided helpful detailed submissions about how the visa applicant claimed to meet the criteria for the visa.

5. In reaching its decision I did not consider a hearing to be necessary as I was able to find in favour of the visa applicant on the basis of the material before me, pursuant to s 360(2)(a) of the Act. As such, I cancelled the hearing.

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

   RELEVANT LAW

7. 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.

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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant was the spouse of his sponsor at the time of the application and whether he continues to be so at the time of this decision.

11. At the time of the application, the applicant provided evidence in support of his claims, including bank statements, statutory declarations from him and his spouse and from friends, copies of receipts, photographs and correspondence addressed to the applicant and the sponsor at the same address. He also provided copies of the marriage certificate evidencing the marriage between him and his spouse and confirmation of divorce orders in relation to a previous marriage of the sponsor confirming that the dissolution of the sponsor’s marriage became absolute on 22 September 2003.

12. The applicant is a 42-year-old citizen of Vietnam. According to his application, he has not had any previous relationships. The sponsor is a 48-year-old Australian citizen, also of Vietnamese background. She has had two previous relationships. The sponsor married her husband in 1996 and she and her husband divorced in September 2003. There were no children from this relationship. The sponsor entered into at facto relationship in 2002, which reportedly ended in 2007. She has two children from this relationship. The children are now 17 and 15 years old.

13. It is claimed that the applicant and the sponsor met in May 2015 in Australia at a mutual friend’s party. At that time, the applicant was in Australia on a visitor visa. He returned to Vietnam in June 2015. According to claims made in the application, the applicant and the sponsor continued to communicate after the applicant returned to Vietnam. The applicant returned to Australia in July 2016, and it is claimed that the applicant and the sponsor moved in together in August 2016. It is further claimed that they have lived together as a married couple in a spousal relationship since this time.

    Are the parties validly married?

14. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant and sponsor were married on 13 August 2016 and the applicant provided a copy of his Australian marriage certificate with the application.

15. 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 the relationship met?

16. The delegate found that there was evidence of a joint account operated by the applicant and the sponsor between September 2016 and September 2018, together with statements that revealed transactions including cash deposits, transfers and purchases. The delegate noted that the applicant and her sponsor did not provide evidence of shared assets and liabilities or sufficient details about the sharing of household expenses. The financial evidence was given some weight but on balance the delegate was not satisfied that the ‘financial commitment evidenced [gave] strong support for the existence of a genuine and continuing relationship’. The delegate noted that there was evidence of some correspondence that had been sent to the same residential address but stated that, given the applicant and the sponsor claimed to have been residing together for a period of at least two years, the delegate would have expected that there would be more evidence to establish the nature of the household. The delegate was therefore not satisfied that this evidence was strongly in favour of the existence of a genuine and continuing relationship. The delegate referred to statutory declarations provided by friends together with photographs of the applicant and sponsor but reasoned that it was expected there would be more evidence about this.

17. The delegate raised concerns about the fact that the applicant first met the sponsor in Australia in May 2015, left Australia just under a month later and did not return until July 2016, marrying his sponsor some five or six weeks later. The delegate noted that the applicant claimed he had kept contact with his sponsor and that the relationship developed while he was overseas but because the applicant provided no evidence to support this claim, the delegate was not satisfied that the applicant and the sponsor could have entered into a serious relationship with each other in such a short period of time. While the delegate gave weight to the fact that the applicant and the sponsor had lodged documents with government agencies, including the Australian Taxation Office and Centrelink, consistent with the relationship, overall, the delegate was not satisfied that the applicant and the sponsor were in a genuine spousal relationship.

18. I have considered the evidence that was provided with the primary application but have also had the benefit of additional evidence that has been submitted to the Tribunal more recently.

19. Importantly, the applicant and the sponsor provided statutory declarations outlining how they first met, how their relationship developed and how they have lived together over the past seven years. Those declarations were detailed and credible.

20. According to the applicant, he first arrived in Australia in May 2015 on a Visitor visa. The purpose of the trip was to visit his cousin who had stomach cancer at that time. He attended a birthday party at a friend’s house and this is where he met the sponsor. They spoke during the party and found they had a lot in common. He asked for the sponsor’s telephone number, and they continued to converse on the telephone while he was in Australia. They also met up on a few occasions before his return to Vietnam. On his return, the applicant contacted the sponsor through Viber and Facetime. He applied for a visa in November 2015 and returned to Australia in July 2016. He spent time with the sponsor and proposed to her shortly after his arrival. They moved in together within a few weeks and married soon after. According to the applicant, the relationship did not receive the blessing of the sponsor’s family initially, especially her mother, because her mother was concerned about her daughter’s two previous failed relationships. However, this relationship has improved over time. The applicant returned to Vietnam in February 2020 to introduce the sponsor to his friends and family. They spent 10 days in Vietnam visiting family and friends. Since they have been together, the applicant raises the two children who live with them, and he and the sponsor share the responsibilities of taking the children to school or sporting engagements. He gets on well with the children and often cooks. According to the applicant, their finances are very tight but the sponsor has just started working as a social worker which the applicant states will provide better opportunities. They are hoping to be able to buy a house together.

21. A statutory declaration from the sponsor is consistent with the information provided by the applicant in his statutory declaration. According to the sponsor, the applicant is very caring and kind and he is supportive of the children. The sponsor stated that she first met the applicant when he was on holidays in Australia, noting that they exchanged telephone numbers and met up on many occasions. When the applicant returned to Vietnam, the applicant contacted her and they spoke on the phone every day, sometimes talking for three or four hours. This continued for about a year and the applicant promised that he would return to Sydney to visit her as soon as he could. The applicant returned to Sydney in July 2016 and she picked him up from the airport. He proposed within two weeks and they decided that they would marry as soon as possible. They married on 13 August 2016. The sponsor now works full-time and she and the applicant share household duties. The sponsor described their work and living routine, noting that the applicant leaves for work early but picks up the children from school and prepares dinner until she gets home. According to the sponsor, she and the applicant have been happily married over the past seven years. She notes that their family and friends are supportive of the relationship.

22. The applicant also provided statutory declarations from his family in Vietnam and from friends living in Australia.

23. A summary of the evidence provided and my assessment about whether I am satisfied about the relationship is set out below.

    Financial aspects

24. As noted in the delegate’s decision, the applicant provided bank statements for a joint bank account for the period September 2016 to September 2018, which displays transactions including cash deposits, cash transfers, salary transfers and purchases.

25. The applicant also provided:

    ·Copies of ANZ bank joint account statements spanning a period from 18 November 2016 to 20 September 2022 and from 20 January 2023 to 20 March 2023, showing regular payments of wages and various payments on bills, groceries, other spendings and cash withdrawals. It appears that the wage deposits were from the applicant’s income.

    ·Copies of purchasing receipts in both names were also provided showing that the applicant and the sponsor had purchased numerous items, including expensive electronical goods in 2019 and 2022. Also provided was a tax invoice issued to both names at their George Hall address in February 2019 regarding the supply and installation of an air conditioner unit.

26. Having regard to this evidence, I accept that the applicant and the sponsor have pooled their financial resources and shared household expenses. I am also satisfied that the applicant and sponsor have joint ownership of certain assets and have joint liabilities for insurances and other expenses such as telephone bills.

    Nature of the household

27. According to written submissions from the representative, the applicant and the sponsor first lived together in William Street, Bankstown, which was the rental house previously shared by the sponsor and her ex-partner. Because the sponsor's ex-partner refused to sign over the lease, the applicant and sponsor moved to their address in Georges Hall. They lived at the Georges Hall address until August 2021 and after this reportedly lived together in Condell Park.

28. It is submitted that the rentals were based on private arrangements with their landlords and they therefore do not have any formal lease agreements. Supporting letters from their landlords were provided confirming the rental arrangements. The owner of the property in Georges Hall confirms that the couple were living in that address with the sponsor's two children from October 2018 to 23 August 2021 and that their rent included utilities. The owner of the property in Condell Park writes that the couple and the sponsor's children are living in their granny flat from 23 August 2021.

29. The applicant provided evidence of correspondence (including letters from Centrelink and Medicare to the sponsor, each of the applicant and the sponsor's motor vehicle registration notices, letters from the Electoral Commission NSW, the applicant's mobile phone bills) addressed to the applicant and sponsor jointly and separately at their addresses in Georges Hall and more recently in Condell Park, spanning a period from 2018 to 2022. It is also relevant to note that the applicant recorded the Georges Hall property as his residential address on the tax returns provided.

30. I also have regard to the detailed evidence provided by the applicant and the sponsor about the nature of their household, including their shared responsibility for housework, cooking and the children.

31. Based on the available evidence provided, I am satisfied that the applicant and sponsor established a joint household and that they shared domestic responsibilities. I also accept that there is evidence that the applicant and sponsor have previously had joint responsibility for care and support of the children. Relevantly, I note that the applicant refers to the children as his dependents in his tax returns.

    Social aspects of the relationship

32. The applicant provided witness statements from two mutual friends. Both state that they saw the couple regularly at friends' gatherings or parties and they believe the applicant and sponsor are very committed to each other and their relationship is genuine and continuing.

33. According to a statement from the applicant, the applicant and the sponsor had a wedding ceremony on 13 August 2016, and they celebrated their wedding with about 30 guests consisting of their friends. The applicant provided photographs of the wedding.

34. The applicant provided letters from Centrelink addressed to the sponsor in January and February 2020 (covering the period from September 2016 to February 2020) showing that Centrelink was informed of the sponsor's status as partnered and that the sponsor has given permission for the applicant to make enquiries on her behalf.

35. The applicant also provided his tax returns which cover the period from July 2016 to June 2022 showing that he has declared the sponsor as his spouse from 13 August 2016. He nominated her two children as dependants.

36. The applicant provided airline tickets, boarding passes and a certificate of travel insurance indicating a joint travel by the parties to visit Vietnam for two weeks in February/March 2020. A number of photographs depicting the parties' activities during this trip including what appears to be gatherings with families were also provided. Also provided were over a dozen of other photos depicting parties in various social settings in Australia during an unspecified period.

37. In addition to this documentary evidence, the applicant provided statutory declarations from 10 witnesses from Vietnam, being friends and family, all of whom attest to their knowledge about the relationship between the applicant and the sponsor. Relevantly, each of these witnesses recount details of their interactions with the applicant and the sponsor when they came to Vietnam in February 2020. All witnesses state that they observed the applicant and the sponsor to be in a loving relationship.

38. The applicant also provided witnesses statements from people living in Australia who are claimed to be familiar with their relationship. There is a statutory declaration from their former landlord, Vu Luong Ngo. The applicant and the sponsor rented part of Vu Luong Ngo’s house in Georges Hall. According to Vu Luong Ngo, he attended their wedding. According to Vu Luong Ngo, he observed the applicant and sponsor raise the sponsor’s children together. He believes their marriage is genuine. There is also a witness statement from a friend of the sponsor who stated that she had known the sponsor for about 10 years and the applicant for about eight years. She attended their wedding and states that, in her opinion and in her dealings with them over the years, the applicant and the sponsor are in a genuine relationship. Finally, there is a statutory declaration from the sponsor’s sister-in-law (her brother’s wife). According to Nguyen Thi Kim Tuyen, she became acquainted with the applicant after his marriage to the sponsor. She has a close relationship with both the applicant and the sponsor, and she declares that she has observed them to be in a genuine relationship.

1. All of the statements provided are detailed, relevant and credible. I give these statements significant weight.

2. In summary, I am satisfied that there is evidence of the applicant and sponsor planning and undertaking joint social activities together. I accept that the relationship is known to friends and family and is socially recognised. Having regard to the available evidence, I also accept that the applicant and sponsor represent themselves to others as being married and, in their view, the relationship is a genuine one.

   Nature of persons' commitment to each other

3. As already noted, there is cogent evidence from the applicant and the sponsor that the relationship between them developed initially through their phone calls following their first meeting in Australia and after he returned to Vietnam in June 2015. He proposed to the sponsor on 10 July 2016 following his return to Australia. Both parties state that they love each other and are happy and committed to their life together as a family. Notably, this evidence is consistent with the witnesses’ statements provided by friends and family.

4. It has been eight years since the parties first met in May 2015. The parties have now been married for nearly seven years.

5. A letter from the ANZ bank of 18 September 2020 confirms that the applicant has nominated the sponsor as a non-lapsing beneficiary with 50% benefit (the other 50% goes to his mother).

6. Based on the material and submissions provided, noting there is no evidence before me suggesting a contrary conclusion, I am satisfied that the applicant and sponsor have a mutual commitment to shared life to the exclusion of others. I am satisfied their relationship is genuine and continuing and that they do not live separately and apart on a permanent basis.

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

8. Therefore, the applicant meets cl 820.211 and cl 820.221(1).

9. 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

10. 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(1) of Schedule 2 to the Regulations.

    J.L Redfern PSM
    Deputy President

    
    

    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).