NGUYEN (Migration)

[2023] AATA 2114

NGUYEN (Migration) [2023] AATA 2114 (5 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Thi Thao NGUYEN

CASE NUMBER:  1821142

HOME AFFAIRS REFERENCE(S):          CLF2013/266181 CLF2018/172223

MEMBER:SM Michael Cooke

DATE:5 June 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

Statement made on 05 June 2023 at 3:47pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – applicant has failed to submit requested information – no current information to evidence whether they see their relationship as long-term – parties do not live together and live separately and apart on a permanent basis – Tribunal is not satisfied that the requirements of s 5F(2) are met at the time of this decision – not a genuine spousal relationship –– decision under review affirmed 

LEGISLATION
Migration Act 1958, ss 5F, 65, 359, 362
Migration Regulations 1994, r 1.15, Schedule 2, cl 801.221

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 on 2 July 2018 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 29 October 2013 on the basis of her relationship with her sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 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 applicant did not satisfy cl 801.221 because the applicant did not satisfy the requirements of s.5F of the Act.

4. On 16 May 2023 an Invitation pursuant to s.359(2) of the Act was sent to the applicant (Mrs Thi Thao NGUYEN) as follows:

   INVITATION TO PROVIDE INFORMATION – MRS THI THAO NGUYEN

   I am writing on instruction from the Member conducting your review, in relation to the application for review made by you in respect of a decision to refuse to grant a Partner (Residence) (Class BS) visa.

   You are invited to provide the following information in writing:

   ·Please provide recent evidence that you and your sponsor are in a genuine and continuing spouse relationship pursuant to reg.1.15A(3) and s.5F of the Act.

   The information should be received by 30 May 2023. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.

   If you cannot provide the information by 30 May 2023, you may ask us for an extension of time in which to provide the information. If you make such a request, it must be received by us by 30 May 2023, and you must state the reason why the extension of time is required.

   We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

   If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

5. The applicant did not reply to the Invitation by the appropriate day and no further information has been submitted to the Tribunal.

6. The applicant has failed to submit requested information pursuant to s.359(2) of the Act. Therefore, the Tribunal will now finalize the decision pursuant to s.362B of the Act without taking any further action to obtain the information.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the parties satisfy the requirements of s.5F of the Act.

   SPOUSE/DEFACTO (cl 801.221(2))

   Whether the parties are in a spouse or de facto relationship

9. Relevantly to this matter, cl 801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

10. ‘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 sponsor’s 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?

11. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. 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?

    Findings and reasons about each matter in reg 1.15A(3)(a), (b), (c) and (d), and any other circumstances of the relationship under reg 1.15A(2).

    ·Financial aspects of the relationship - including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

12. In her statutory declaration dated 23 October 2015, the applicant stated that she and her sponsor both worked full time, that both have stable jobs and income. She claimed that she and her sponsor do not have any significant assets, and that they are planning to buy a house together. In her sponsor’s statutory declaration dated 19 October 2015, he stated that both parties worked full time, that he earns more than she and that he covers the majority of the bills. He indicated that he has a Commonwealth Bank (CBA) account in joint names with the applicant and that they are both trying to save money to buy a house.

13. In support of her claims, the applicant provided a letter from Sunshine Nails & Beauty indicating that she was a full-time nail technician. As well as this, she tendered her sponsor's payslip at PayPal Australia Pty Limited, a tax invoice issued by Bing Lee, and CBA joint account statements for the period July 2013 to September 2015. The account statements showed transactions of fund transfers and withdrawals. On 14 May 2018 she submitted further evidence of two tax invoices in joint names with her sponsor and CBA joint account statements for the period of July 2017 to December 2017.

14. As the delegate’s decision was made in July 2018 the Tribunal requested the applicant to submit current information on this consideration evidencing the financial aspects of their relationship. The applicant did not respond to the request to produce additional information.

15. The Tribunal is not satisfied (based on the available information provided) the financial aspects of their relationship indicate it is spousal in nature.

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

16. In her statutory declaration dated 23 October 2015, the applicant stated that she and her sponsor live with her relatives at Belmore, New South Wales. She further indicated that she cooked for her sponsor and her relatives. Also, she did the cleaning and housework together with her sponsor. She claimed that her sponsor usually does the lawn mowing and other hard work in the house. In her sponsors statutory declaration dated 19 October 2015, he stated that he works full time and long hours and that you cook for him and your relatives while you and he do the house cleaning together. To support her claims, the applicant submitted various correspondence in her name addressed to her claimed residential address. On 14 May 2018, she submitted her driver’s licence and her sponsor's driver's licence plus various other correspondence in both names, all addressed to her claimed address. They did not indicate that they had any children to support.

17. As the delegate’s decision was made in July 2018, the Tribunal requested the applicant to submit current information on this consideration thus evidencing the contemporary nature of their household. The applicant did not respond to the request to produce additional information.

18. The Tribunal is not satisfied on the available evidence before it that the nature of the household is a spousal one.

    ·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.

19. In her statutory declaration dated 23 October 2015, the applicant stated that she and her sponsor socialise with family and friends and that her family and relatives are very supportive of their relationship. She informed that her sponsor usually takes her to the city, the Blue Mountains or shopping and that she attended her sponsor's sister's wedding with her sponsor. In her sponsor's statutory declaration dated 19 October 2015, he stated that he likes spending time with the applicant and his parents and relatives on the weekend. He indicated both parties were members of the local Canterbury RSL Club and that he plans to go to Vietnam in 2016 to meet her parents.

20. In support of these claims, the applicant provided a flight itinerary in joint names with her sponsor to show that she travelled with your sponsor to Vietnam on 1 February 2016

21. The applicant submitted various photographs taken with her sponsor as well as his family and mutual friends. She also submitted two Form 888 supporting witness statements completed by her sister-in-law, Ms Thu Hien Nguyen, and her sponsor's friend, Mr Tran Anh Toon Pham. Both declarants stated that they are in contact with both parties regularly. They indicated that they believed she and her sponsor are committed to each other. On 14 May 2018, the applicant provided further photographs to demonstrate that she and her sponsor socialise together with friends and family.

22. As the delegate’s decision was made in July 2018, the Tribunal requested the applicant to submit current information on this consideration, thus evidencing the contemporary social aspects of their relationship. The applicant did not respond to the request to produce additional information.

23. The Tribunal is not satisfied, on the evidence before it, that the social aspects of their relationship are of a spousal nature.

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

24. The Tribunal has considered the significant length of time the parties have claimed to have been in a relationship. It notes that the applicant and her sponsor had already been granted a Subclass 820 Partner visa by the Department. They even have evidenced some plans for the future to the delegate. However, despite a Tribunal invitation to tender same, there is no contemporary information which would indicate the degree of companionship and emotional support they draw from each other. The Tribunal, furthermore, has no current information to evidence whether they see their relationship as long-term.

25. On the available evidence, the Tribunal is satisfied that the nature of persons' commitment to each other is not a spousal one.

    ·Any other circumstances of the relationship.

26. None.

27. The Tribunal has considered the ‘full circumstances of the relationship’ and makes the following findings on these matters against s 5F(2)(b)-(d) of the Act. The parties do not have a mutual commitment to a shared life to the exclusion of others or a genuine and continuing relationship and they do not live together and live separately and apart on a permanent basis.

28. Given these findings the Tribunal is not satisfied that the requirements of s 5F(2) are met at the time of this decision. Therefore, the applicant does not meet cl 801.221(2)(c).

29. Furthermore, the applicant has not claimed, and there is no evidence before the Tribunal, that the applicant meets the alternative criteria in cl 801.221(2A), (3), (4), (5) or (6).

30. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

31. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

    Michael Cooke
    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).