Nguyen (Migration)

[2023] AATA 1672

Nguyen (Migration) [2023] AATA 1672 (11 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Thi Bich Nguyen

REPRESENTATIVE:  Ms Carina Ford (MARN: 9802862)

CASE NUMBER:  1919391

HOME AFFAIRS REFERENCE(S):          CLF2014/64539

MEMBER:Cheryl Cartwright

DATE:11 April 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(2)(a) of Schedule 2 to the Regulations

·cl 820.211 of Schedule 2 to the Regulations

Statement made on 11 April 2023 at 12:13pm

CATCHWORDS
Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – financial, household and social aspects of relationship and nature of commitment – length of relationship and valid marriage – documentary and oral evidence and supporting statements – applicant’s medical condition and sponsor’s support – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 820.211(2)(a), 820.211

CASES
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700


Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 applied for the visa on 2 May 2014 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 visa applicant did not satisfy cl 820.211(2)(a) because the evidence provided was insufficient to demonstrate that the applicant was the spouse or de facto partner of the sponsor, as defined under section 5F and 5CB of the Migration Act.

4. The applicant appeared before the Tribunal on 22 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Michael William Hall. 

5. The applicant was represented in relation to the review.

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, at the time of application on 2 May 2014, the applicant and the sponsor were spouses for the purposes of the Act.

8. As Middleton J stated in Jayasinghe v MIMA [2006] FCA 1700 at [35]:

   Evidence of events subsequent to the visa application is relevant if it ‘tends logically to show the existence or non-existence of facts relevant to the issue to be determined’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. The Tribunal must consider all relevant evidence, which may include evidence of events subsequent to the date of application insofar as it assists in the task of determining whether the appellant and the sponsor were in a marriage relationship at the time of the application. The question of whether particular evidence is relevant and the weight it is to be given is clearly a matter for the Tribunal.

9. In deciding this matter, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application. In the circumstances of this case, the Tribunal considers that it is appropriate to make findings about cl 820.221 (a time of decision criterion) as well.

   Background

10. The parties first met in Kuala Lumpur, Malaysia, in 2013 when the applicant was on holiday from Vietnam and the sponsor was living in Malaysia, using it as a base for his job representing an Italian aerospace company in South East Asia.

11. In independent and consistent evidence to the Tribunal, the parties told the hearing that the sponsor approached the applicant at a restaurant where she was dining with friends and introduced himself.

12. The parties dated and began a relationship soon after.

13. When the sponsor returned to Australia in 2014 he asked the applicant to join him. They were married on 18 March 2014.

14. They have continued to live together as a married couple in rented accommodation.

    Whether the parties are in a spouse or de facto relationship

15. 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. A copy of the sponsor’s passport is on the Department’s file.

16. ‘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).

17. 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) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

18. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties were married at Parkdale Victoria on 18 March 2014. A copy of the marriage certificate is on the Department’s file.

19. 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?

20. Regulation 1.15A(3) provides relevant factors for determining whether the spousal relationship exists. These factors are (a) the financial aspects of the relationship; (b) the nature of the household; (c) the social aspects of the relationship; and (d) the nature of the persons’ commitment to each other. In considering these issues, the Tribunal has had regard to all the documents on the Department’s file and the Tribunal’s file and the evidence provided at the Tribunal hearing.

    The financial aspects of the relationship

21. Any joint ownership of real estate or other major assets, any joint liabilities, the extent of any pooling of financial resources, whether one person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day-to-day household expenses are relevant factors to consider when assessing the financial aspects of the relationship.

22. There is no evidence before the Tribunal that the parties jointly own real estate or other major assets, that they have any joint liabilities or that one person in the relationship owes any legal obligation in respect of the other.

23. Before the hearing, the parties provided to the Tribunal bank account statements dated 2023. On 5 April 2023, after the hearing, the Tribunal received copies of bank account statements of the parties dated from 2019 through to 2023.

24. The parties stated that they do not have a joint bank account but share household expenses and transfer funds to each other in managing the expenses. In separate and consistent statements the parties told the hearing that the sponsor pays the rent and the utilities invoices for their accommodation and the applicant does most of the grocery shopping. The applicant makes regular payments of $300 to the sponsor as a contribution to the rent and utilities costs.

25. The Tribunal notes the lack of evidence provided to the Department at the time of application and gives little weight to this lack of evidence.

26. The Tribunal notes the evidence provided at the hearing, and the further evidence of bank account details that were provided subsequent to the hearing and gives some weight to the evidence of shared responsibility for household expenses.

    The social aspects of the relationship  

27. Whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.

28. The Tribunal notes the limited evidence provided to the Department at the time of application and gives little weight to the limited evidence.

29. The parties had a small wedding at Parkvale and did not have a honeymoon.

30. The parties provided photographs of themselves with friends and family, covering the period from their marriage through to 2022. The Tribunal gives some weight to the photographs as evidence that the parties represent themselves to other people as being married to each other.

31. The parties provided to the Tribunal statements from friends and family.

    a.In a statement dated 30 November 2022, a friend of the sponsor, Geoff Butler stated that the parties visit his farm in Victoria regularly and he and his wife stay with the parties at their home.

    b.In an undated statement received by the tribunal on 6 December 2022, a work colleague of the applicant, Ngoc Thi Nguyen stated that the sponsor drives the applicant to and from work every day.

    c.In a statement dated 29 November 2022, a work colleague of the applicant, Tran Thi Thu Nga stated that the sponsor drives the applicant to and from work every day.

    d.In a statement dated 21 March 2023, the work supervisor of the applicant, Han Nguyen also stated that the sponsor drives the applicant to and from work every day. Mr Nguyen also stated that he had attended a New Year’s party at the home of the parties “last year”.

    e.In a statement dated 28 November 2022, a friend of the parties, Gail Morris stated that she was a neighbour of the parties and they had become good friends. Ms Morris stated that she often dines with the parties and they had attended her wedding in 2018.

    f.In a statement dated 26 March 2023, a brother of the sponsor, John Hall stated that he sees the parties at family functions.

    g.In a statement dated 24 March 2023, a brother of the sponsor, Joseph Hall stated that he sees the parties at family functions, he has visited their shared home and he has witnessed “how they interact with each other”.

    h.In a statement dated 24 March 2023, a brother of the sponsor, Matthew Hall stated that he sees the parties “a few times each year” at family get-togethers and at the parties’ home. Mr Matthew Hall stated that he speaks frequently by telephone with the sponsor and “would know” if the parties were not together, and he describes the relationship as “genuine and continuing”. The Tribunal notes that the statement by Mr Matthew Hall is unsigned, but in the context of submissions provided to the Tribunal on 5 April 2023, accepts this statement is genuine.

    i.In a statement dated 24 March 2023, a brother of the sponsor, Peter Hall stated that he has seen the parties together but not regularly as he lives in Queensland. Mr Peter Hall stated that in their regular telephone discussions the sponsor constantly refers to the applicant and the parties’ joint activities. The Tribunal notes that the statement by Mr Peter Hall is unsigned, but in the context of submissions provided to the Tribunal on 5 April 2023, accepts this statement is genuine.

    j.In a statement dated 28 March 2023, a friend of the parties, Rosslyn Mackay stated that she had attended the parties’ wedding, along with her husband Geoff Butler, who was the best man. Ms Mackay stated that she had shared cooking recipes with the applicant and had provided flowers from her garden for the parties’ wedding.

32. The Tribunal notes the statements from friends and family provided before the hearing and on 5 April 2023, and gives some weight to these statements as evidence that the parties present themselves as being married to each other and in the opinions of friends, family and acquaintances the parties are regarded as being married to each other.

33. In independent and consistent statements the parties told the Tribunal hearing that they spend time with the sponsor’s siblings, including celebrating Christmas with them. A photograph of a family Christmas celebration was provided to the Tribunal. The Tribunal gives some weight to this evidence.

34. The parties told the hearing that they often visited the farm of Geoff Butler and Rosslyn Mackay and that Ms Mackay had made a special cake in April 2014 to celebrate their marriage. The parties also stated that Ms Mackay had provided the flowers for the bouquet for their wedding in March 2014. The Tribunal gives some weight to this evidence.

35. The Tribunal notes that, while some of the witness statements provide only general information, most provide some detail about sharing social events with the parties and their interactions with the parties. The Tribunal also notes that the information provided by the witnesses was supported by independent evidence that the parties provided to the hearing.

36. The Tribunal gives the statements by the witnesses and the parties regarding their social activities some weight and is satisfied that the parties present to other people as being married to each other and that their friends and relatives and acquaintances consider them as being married to each other.

    The nature of the household

37. Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are relevant matters to be considered when assessing the nature of the household.

38. There is no evidence before the Tribunal that the parties have any children together. The sponsor has a daughter from a previous marriage.

39. In independent and consistent statements, and confirmed by the statements mentioned above from Ngoc Thi Nguyen, Tran Thi Thu Nga and Han Nguyen, the parties told the hearing that the sponsor drives the applicant to and from work every day. He is able to do so because he works in real estate and starts work much later than the applicant does, and in the afternoon he can manage his time so that he is available when she finishes work.

40. The parties stated that they share household tasks and they both cook. They often have dinner parties for friends and family.

41. The parties provided utilities invoices addressed to them both and a rental agreement listing them both as tenants at their home at [Address]. The Tribunal notes the evidence provided at the hearing that the sponsor pays the rent and the utilities invoices and the applicant makes a contribution to these costs through regular bank transfers.

42. The Tribunal also notes that, while the parties do not have a joint bank account, they jointly manage their household expenses through transfers between their individual bank accounts.

43. The Tribunal gives some weight to the evidence of the parties’ sharing of household chores and the management of their household finances.

    The nature of the persons’ commitment to each other

44. The duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the persons draw from each other, and whether the persons see their relationship as long-term are all aspects to be considered in determining the nature of the persons’ commitment to each other.

45. The Tribunal notes the limited evidence provided to the Department at the time of application and gives little weight to this lack of evidence.

46. The Tribunal notes that, at the time of application on 2 May 2014, the parties had been married for two months and at the time of this decision they have been married for almost nine years and gives great weight to this length of time.

47. The parties gave independent and consistent evidence that the applicant had discovered she had [Medical condition] only after undertaking a medical examination as part of the visa application process. The sponsor had supported the applicant emotionally while her health regime was established and the parties expect she will continue with her medication and remain well.

48. In their evidence to the hearing the parties demonstrated an understanding of each other’s needs and their plans for a life together. The Tribunal also notes the statements provided by friends and family as evidence of the parties’ commitment to each other.

49. The Tribunal is satisfied that the parties see their relationship as genuine and long-term.

    Conclusion

50. After considering all the evidence provided to it, the Tribunal is satisfied that, at the time of application and at the time of this decision, the parties were and are in a committed spousal relationship.

51. As stated above, the Tribunal is satisfied that the parties are validly married, as required by s 5F(2)(a) of the Act.

52. After considering all the evidence before it and for the reasons given with respect to the reg 1.15A(3) matters, the Tribunal is satisfied that, both at the time of application on 2 May 2014 and at the time of this decision, the applicant and the sponsor:

    ·had and have a mutual commitment to a shared life as wife and husband to the exclusion of all others, as required by s 5F(2)(b) of the Act;

    ·had and have a genuine and continuing relationship, as required by s 5F(2)(c) of the Act; and

    ·lived and live together as much as possible as required by s 5F(2)(d)(i) of the Act.

53. Given these findings, the Tribunal is satisfied that, at the time the visa application was made and at the time of this decision, the parties were and are in a genuine spousal relationship. Therefore, the visa applicant meets cls 820.211(2)(a) and 820.221.

54. 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

55. 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(2)(a) of Schedule 2 to the Regulations

    ·cl 820.221 of Schedule 2 to the Regulations

    Cheryl Cartwright
    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).