Nguyen (Migration)

[2023] AATA 2107

Nguyen (Migration) [2023] AATA 2107 (6 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Van Anh Nguyen

VISA APPLICANTS:  Mr Ngoc Tung Dinh
Miss Nhat Linh Dinh

REPRESENTATIVE:  Mr Michael Cai, Legal Practitioner

CASE NUMBER:  1915817

DIBP REFERENCE(S):  BCC2018/3964461

MEMBER:Jennifer Cripps Watts

DATE:6 June 2023

PLACE OF DECISION:  Canberra

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

· Subclause 309.211(2) of Schedule 2 to the Regulations

· Subclause 309.221 of Schedule 2 to the Regulations

Statement made on 6 June 2023 at 5:32pm

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – copy of Marriage Certificate provided – parties are validly married – applicants are currently in a genuine spousal relationship–parties are committed to one another – parties live in a manner consistent with that of a married couple – decision under review remitted      

LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, r 1.15, Schedule 2, cls 309.211, 309.221

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 Immigration (the delegate) on 10 June 2019 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant (the applicant) applied for the visa on 27 June 2018 on the basis of their relationship with their sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (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 applicant’s visa on the basis that the applicant did not satisfy cl.309.211(2) of Schedule 2 to the Regulations because the delegate was not satisfied the applicant and sponsor (the parties) were in a married relationship as it is described in s 5F(2) of the Act.

4. The review applicant appeared before the Tribunal by MS-Teams audio-visual on 1 June 2023 to give evidence and present arguments. The Tribunal also received oral evidence from visa applicant and husband of the review applicant, Ngoc Tung Dinh, by phone from Vietnam.

5. The parties’ representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the parties were spouses, at the time of application, and continue to be, at the time of this decision, in a married relationship as it is described in s 5F of the Act, an extract of which is attached to this decision.

   Whether the parties are in a spouse or de facto relationship

8. Clauses 309.211(2) and 309.221 of Schedule 2 to the Regulations require that at the time the visa application was made, and at the time of this decision, the visa 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 visa applicant claims to be the spouse of the review applicant 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 visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.

   Are the parties validly married?

10. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.  The parties have provided a marriage certificate confirming they married each other on 16 March 2018.  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?

11. The Tribunal has considered documentary evidence on the Department and Tribunal files, together with the parties’ oral evidence given at the hearing and any other relevant evidence, in reaching its decision.

12. The Tribunal is required to make, and has made findings, against each of the matters contained in reg 1.15A(3)(a), (b), (c) and (d) of the Regulations and any other circumstances of the relationship under reg 1.15A(2). In doing so, the Tribunal has been mindful that this is an offshore partner visa application; the sponsor lives and works in Australia, and the visa applicant lives and works in Vietnam and, for that reason, may not be expected to demonstrate certain aspects of the relationship as a couple that was residing together in the same country.

13. The sponsor gave evidence first at the Tribunal hearing.  She was thoughtful and spontaneous answering questions and impressed the Tribunal as a witness of credit.  The visa applicant was only asked a few questions on matters the Tribunal wished to clarify from the sponsor’s evidence.  His oral evidence at the Tribunal hearing was generally consistent with that given by his wife.

    Background

14. The parties are both divorced.  The visa applicant is a Vietnamese national who resides in Vietnam.  The sponsor was originally from Vietnam and has continued to travel back there to visit family since she moved to Australia, more than 30 years ago.

15. The sponsor has two adult children; one is married.  The visa applicant has a daughter who lives with him, and a younger son who continued to live with his maternal grandmother and the visa applicant’s ex-wife after their divorce.

16. On a boat trip the sponsor took with her parents in July 2015 in Ha Long Bay Vietnam, the sponsor and her family requested that the meals they ordered be prepared without MSG.  The chef on the boat prepared their meals without MSG and came out to ask how they enjoyed their meals afterwards.  The chef, who is the visa applicant in this matter, and sponsor hit it off.  Now they are married and are the parties in the application for review.  

17. The say their relationship started in 2016 after they had continued to talk to each other.  They spent a week together in September 2016 in Ho Chi Minh City.  In February 2017, while the sponsor was visiting Vietnam the parties decided to get married.  In 2018, the sponsor invited the visa applicant and his daughter (the secondary applicant) to take a trip to Singapore with members of the sponsor’s family.  They took the trip in September 2017. An engagement ceremony was held in Vietnam on 3 March 2018 and the marriage was registered on 16 March 2018.

18. The sponsor travelled to Vietnam again in early 2019.  COVID-19 travel restrictions, particularly in 2020, meant there were no trips taken by the sponsor to Vietnam again until May/June 2022.  The applicant has recently returned from another trip to Vietnam taken in March 2023.

    The financial aspects of the relationship: reg 1.15A(3)(a)

19. The Tribunal has considered whether the parties have any joint ownership of assets or any joint liabilities, the extent of pooling of financial resources, any legal obligations owed to the other party; and any sharing of day-to-day household expenses.

20. These are two mature aged people who have been married before and who already have children, mostly over 18, with their former partners.  They have provided no substantial evidence of having shared assets, liabilities or finances.  In the circumstances, including their life stage and that they live in different countries, the Tribunal gives no negative weight to their current lack of joint financial activity, at the time of application or at the time of this decision.  The parties gave consistent oral evidence at the hearing that the visa applicant, who is a chef, plans to bring funds with him to Australia and open a Vietnamese restaurant.  He and the sponsor plan that the sponsor will assist him and work in the restaurant.  

    Nature of the Household: reg 1.15A(3)(b)

21. The Tribunal has considered any joint responsibility the parties provide relating to care and support of children, the parties’ living arrangements and any sharing of housework.

22. The parties have spent time together when the sponsor has visited Vietnam since their wedding in early 2018.  On the last trip, the sponsor visited Vietnam primarily to be with her father who succumbed to cancer while she was there.  The visa applicant and his daughter both visited the sponsor at her parents’ house, which is about two hours from where they live, during this five-week period from 3 March 2023. 

23. Given that the parties reside in different countries, the Tribunal is mindful that their ability to demonstrate a shared household in any traditional sense is very limited.  The Tribunal considers it reasonable that the sponsor stayed with her parents during the last trip to Vietnam.  On other trips, the parties have stayed together in Vietnam and elsewhere.

24. The visa applicant’s daughter is now a young adult and, while it is reasonable to think that joint the parties will provide some support to her in Australia, the need for the sponsor to share in her support and care in Vietnam is minimal.  The visa applicant’s daughter lives with her father and the Tribunal is satisfied that the parties spend time together with her with the sponsor is in Vietnam.

25. The parties gave consistent evidence about the sponsor’s household circumstances in Australia.  The sponsor owns and lives in a three-bedroom house, and currently has two nieces living with her who are studying.  Her two sons, who are now adults, live in their own homes.  The parties said they plan to consider the logistics of how the household will be shared when the visas are granted.

26. The Tribunal is satisfied that the parties, to the extent they can, share a household in the manner of a committed married couple and that they plan to continue to do so in Australia when the visas are granted.

    Social Aspects of the Relationship: reg 1.15A(3)(c)

27. The Tribunal has next considered whether the 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.

28. The parties have spent a fairly significant amount of time together, when consideration is given to their residing in different countries and limited opportunities to spend time in each other’s company throughout the COVID-19 pandemic and resulting disruptions to overseas travel.

29. The parties have provided photographs of themselves together and with others at the time of application, and have provided additional photographs together and in social settings from the 2019 and 2021 trips the sponsor took to Vietnam.

30. The parties held their engagement and wedding ceremonies in Hai Phong in a simple ceremony.  The explained the reason for this: they have both been married before and the sponsor only had limited time in Vietnam when she visited due to work commitments back in Australia.  The Tribunal gives no negative weight to the parties not having held a traditional Vietnamese wedding, in their circumstances.

31. The Tribunal is satisfied that the parties represent themselves to friends and family as a married couple and that they socialise together with friends and family in Vietnam when the sponsor visits.

    Nature of the parties’ commitment to each other: reg 1.15A(3)(d)

32. The Tribunal has considered in what ways the parties demonstrate their commitment to each other, including the 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.

33. The parties have provided additional Viber chat record for periods in 2021 indicating they communicate regularly in a loving way.  The Tribunal spoke with each of the parties separately at the hearing and they gave consistent evidence about the visa applicant’s emotional and other support given to his wife when she was most recently in Vietnam.

34. The sponsor travelled to Vietnam in early March 2023 to be with her terminally ill father.  He passed away on 30 March 2023 and a funeral was held, which was attended by family and friends, including the sponsor and his daughter, the secondary applicant.  The sponsor said she and her husband’s daughter get along very well, and that she ‘loves her’, which the Tribunal accepts as being a genuinely expressed sentiment.

35. Having had regard to all the matters in reg 1.15A(3), the Tribunal finds that the parties live in a manner consistent with that of a married couple.

36. For the purpose of s 5F(1) of the Act, the Tribunal finds that the parties:

    ·are married to each other under a marriage that is valid for the purposes of this Act (s 5F(3)(a)); and

    ·have a mutual commitment to a shared life as a married couple to the exclusion of all others (s 5F(3)(b)); and

    ·the relationship between them is genuine and continuing (s 5F(3)(c)); and

    ·they live together or do not live separately and apart on a permanent basis (s 5F(3)(d)(i) and (ii)).

37. On the basis of the above the Tribunal is satisfied the requirements of s.5F(2) are met at the time of application and the time of this decision.

38. Therefore the visa applicant meets cl.309.211(2) and continues to meet the criteria at the time of this decision: cl 309.221 of Schedule 2 to the Regulations.

39. Given the findings above, the appropriate course is to remit the application for the visas to the Minister to consider the remaining criteria for a Subclass 309 visa.

    DECISION

40. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·Subclause 309.211(2) of Schedule 2 to the Regulations

    ·Subclause 309.221 of Schedule 2 to the Regulations

    Jennifer Cripps Watts
    Senior Member

    
    

    Attachments  - Extract from Migration Regulations 1994 – reg 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).

    Extract MIGRATION ACT 1958 - SECT 5F - Spouse

    (1)    For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.

    (2)    For the purposes of subsection (1), persons are in a married relationship if:

    (a)they are married to each other under a marriage that is valid for the purposes of this Act; and

    (b)they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and

    (c)the relationship between them is genuine and continuing; and

    (d)they:

    (i)  live together; or

    (ii)  do not live separately and apart on a permanent basis.

    (3)    The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.