Nguyen (Migration) - [2024] AATA 2783

Nguyen (Migration) [2024] AATA 2783 (1 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Thi Loan Nguyen
Ms Nguyen Ngoc Han Luu
REPRESENTATIVE:  Mr Michael Cai
CASE NUMBER:  1930935
HOME AFFAIRS REFERENCE:               BCC2018/2753136
MEMBER:Suseela Durvasula
DATE:1 August 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the directions that:
· the first-named applicant meets the following criteria for a Subclass 820 (Partner) visa:
ocl 820.211 of Schedule 2 to the Regulations; and
ocl 820.221 of Schedule 2 to the Regulations;

· the second-named applicant meets the following criteria for a Subclass 820 (Partner) visa:
ocl 820.311 of Schedule 2 to the Regulations; and
ois dependent on the primary visa applicant for the purposes of cl 820.321 of Schedule 2 to the Regulations.

Statement made on 01 August 2024 at 2:37pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – shared international travel – lengthy relationship – joint tenancy agreement – joint bank account and insurance – family support for the relationship – secondary applicant in full time studies – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221, 820.311, 820.321; rr 1.03, 1.05, 1.15
CASES
Al Naqi v MIAC [2007] FMCA 874
He v MIBP [2017] FCAFC 206
Huynh v MIMA [2006] FCAFC 122
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The first named applicant (the applicant or the primary applicant) applied for the visa on 23 July 2018 on the basis of her relationship with her sponsor. The visa application and sponsorship application included the applicant’s daughter as a secondary applicant. 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.
The delegate refused to grant the visas as the applicant did not satisfy clauses 820.211 and 820.221 of the Regulations. The delegate was not satisfied the applicant was the spouse of her sponsor at the time of application or decision.
The applicants appeared before the Tribunal on 24 July 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Mr Shibli Nustas, and the secondary applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicants were represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant was the spouse of her sponsor at the time of application and continues to be at the time of the decision.
Background
The applicant is a 53-year-old Vietnamese national. She is sponsored by Mr Shibli Nustas (the sponsor), a 74-year-old Australian citizen who was born in Judea Samaria (Jerusalem).
The applicant has previously been married. She married her first husband in 1997. They divorced in 2013, then remarried in May 2014 and divorced again on 16 November 2017. There is one child from this relationship, who is the secondary applicant. At the hearing, the applicant explained that she did not get on well with her first husband and he did not treat her well. She decided to remarry him for the sake of her daughter, but it did not work out so they divorced.
The sponsor has previously been married twice. His first marriage ended in 2006 after his wife passed away. There are 6 children from this relationship. His second marriage ended in divorce in 2012 and there were no children from this relationship.
The parties first claim to have met in November 2017 in Ho Chi Minh City when the sponsor was in Vietnam for a holiday between 21 November and 5 December 2017. The applicant spent time with the sponsor during this visit. Their communication was assisted by the sponsor’s Vietnamese-Australian friend.
The applicant first arrived in Australia on a Subclass 600 visitor visa on 15 December 2017 to visit her daughter who was studying in Adelaide. The applicant and her daughter spent 2 days at the sponsor’s place in Sydney and he then travelled with them to Adelaide. The applicant departed on 22 December 2017 and the parties kept in contact. The sponsor travelled to Vietnam again between 16 and 26 March 2018 and met the applicant’s family in Soc Trang. They claim to have become engaged during this trip.
The applicant came to Australia on 17 May 2018 and started living with the sponsor. The parties married in Sydney in a civil ceremony on 8 July 2018.
The applicant applied for the Subclass 820 visa on 23 July 2018. Her Subclass 600 visa ceased on 17 August 2018.
The applicant travelled to Vietnam on 25 September 2019. The sponsor departed on 24 October 2019 and they returned to Australia together on 29 October 2019.
The applicant has since travelled to Vietnam on 4 occasions without the sponsor, between June 2022 and February 2024. At the hearing, the applicant explained she travelled to Vietnam as her mother was unwell. The sponsor could not travel with her due to his health conditions. A medical certificate was provided to the Tribunal.
Whether the parties are in a spouse or de facto relationship
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.
‘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.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. A marriage certificate on file shows the parties married in Australia on 8 July 2018 and the marriage was valid. On the evidence, the Tribunal finds 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?
The Tribunal now considers the factors under reg 1.15A(3).
The Tribunal found both the applicant and the sponsor to be credible witnesses who gave consistent and detailed evidence about their relationship and their daily lives that was supported by a large volume of documentary evidence. They demonstrated sound knowledge of each other’s circumstances. The Tribunal therefore accepts their evidence about how their relationship has developed and the current circumstances of their relationship.
The Tribunal now addresses the concerns raised by the delegate and other concerns. The delegate considered there was insufficient evidence of a genuine and continuing relationship. The delegate had particular concerns about the short inception of the relationship and the fact that the parties did not share a common language. The delegate found there was also limited evidence that the parties had joint financial and household arrangements and limited evidence of the social aspects of the relationship.
The Tribunal now has considerably more evidence available to it than was available at the time of application and at the time of the delegate’s decision, noting that approximately 5 years have passed since the delegate’s decision was made. The Tribunal has also had the benefit of speaking to both parties face to face, whereas the Department did not interview the applicant or the sponsor. In this regard, the Tribunal has had regard to the subsequent history of the relationship and the additional supporting documentation to establish that it was genuine and continuing at the time of application.
In relation to the apparently quick development of the relationship, the parties both gave evidence that they were lonely after their previous relationships had ended. The sponsor was looking for a suitable marriage partner at the time they met, and the applicant was open to a relationship. The parties spent time together in Vietnam and at the sponsor’s place in Sydney before they committed to marriage. The sponsor also met the applicant’s family in Vietnam. Therefore, the Tribunal does not consider that the parties entered into the relationship hastily, given their circumstances.
In relation to sharing a common language, the Tribunal accepts the applicant had limited English when the parties first met and that they partly communicated through ‘Google translate’ or with the assistance of friends and family members. The applicant’s English has since improved, and although still limited, the Tribunal accepts the parties can communicate effectively through face to face contact. Given that the parties have not spent significant periods apart since they first committed to a relationship in 2018, the Tribunal does not draw any adverse conclusions from the fact that their chat records demonstrate only basic messages during periods of separation. The Tribunal accepts that the bulk of their communication occurs face to face.
The Tribunal accepts the applicant travelled to Vietnam 4 times after 2022, without the sponsor, to see her mother, who was ill. The Tribunal accepts the sponsor was unable to travel due to his health conditions, evidenced by a medical certificate.
The Tribunal now considers the factors under reg 1.15A(3).
Financial aspects of the relationship
In relation to the financial aspects of the relationship, the parties have provided further evidence to demonstrate that they pool their financial resources and share household expenses. At the hearing, they each provided consistent evidence about their financial arrangements and demonstrated good knowledge about each other’s financial circumstances.
The Tribunal accepts the applicant has limited capacity to contribute to financial expenses as she does not work. The parties are therefore reliant on the sponsor’s Centrelink pension and assistance from his children. The parties have a joint tenancy agreement for their current residence and the Tribunal accepts that the sponsor’s children pay the rent and assist with utility bills. The Tribunal gives weight to the fact that the sponsor told Centrelink about his relationship in July 2018 and his age pension was reduced to the partnered rate as a result. The Tribunal also gives weight to the fact that the sponsor and his children fully support the applicant as she cannot work.
The delegate was concerned that there was limited activity in the parties’ joint bank account. The parties have now provided joint bank statements over 5 years (2018 to 2019 and 2022 to 2024), showing that the account is regularly used for daily expenses such as groceries, fuel, eating out and health insurance. The Tribunal accepts the applicant and the sponsor make regular cash deposits into the account from the sponsor’s pension. The Tribunal draws no adverse conclusions from the fact that the sponsor’s Centrelink pension gets paid into a separate account, as he would have set this up before his marriage to the applicant.
The Tribunal accepts, based on receipts provided, that the parties have purchased some household goods together. They have joint comprehensive car insurance and joint health insurance. They have been unable to otherwise accumulate significant assets as they both have limited income.
On the basis of the above evidence, the Tribunal accepts that the parties have joint financial arrangements, consistent with a genuine and continuing relationship.
Nature of the household
The parties have provided a substantial volume of evidence to demonstrate that they have lived together at 2 different places in Bankstown since the visa applicant’s arrival in Australia in May 2018. This evidence includes: rental agreements, car insurance and registration certificates, utility bills, letters from Centrelink and other correspondence addressed to them jointly and separately. Their living arrangements are also corroborated by statements from third parties, including the sponsor’s children.
At the hearing, the parties gave consistent evidence about their daily routines. The Tribunal accepts their evidence that the applicant takes care of most of the housework, cooking, cleaning and the laundry. The applicant also does most of the driving. The sponsor is unable to do much housework or the driving because of his health issues. They both do the shopping together. Their living arrangements were also corroborated by the oral evidence of the applicant’s daughter, who lives with them.
On the basis of the above evidence, the Tribunal accepts that the parties have joint household arrangements, consistent with a genuine and continuing relationship.
Social aspects of the relationship
In relation to the social aspects of the relationship, the Tribunal accepts that the parties present themselves to the outside world as a couple. They have declared their relationship to Centrelink and other agencies. At the time of the Tribunal’s decision, they have provided differently worded statements from at least 6 third parties, who attest that their relationship is genuine and continuing. This includes statements from 3 of the sponsor’s children, 2 of the applicant’s friends and the sponsor’s friend. The Tribunal gives weight to the evidence from the sponsor’s children which states they have regular contact with the applicant and are supportive of the relationship. The children discuss the positive impact the applicant has had on the sponsor.
Numerous photographs demonstrate that the parties have regular contact with the sponsor’s children and grandchildren, undertake social activities together and celebrate significant events with family members, such as birthdays and Christmas. The Tribunal accepts they both go to their local sports club to socialise. At the hearing, the sponsor described, in detail, how well the applicant had integrated into his family and had been accepted by his children and grandchildren. The Tribunal accepts that the sponsor has also met the applicant’s family in Vietnam when he was able to travel. While the applicant’s daughter was initially wary of the relationship, she gave evidence at the hearing that she now accepts the relationship and is supportive of it.
The Tribunal finds, based on the evidence above, that the social aspects of the relationship demonstrate the parties have a genuine and continuing relationship.
Nature of the commitment
The Tribunal has accepted above, the circumstances in which the parties met and decided to marry. At the hearing, the Tribunal discussed the age difference between the parties and whether that may reflect on their long-term commitment to each other. The parties both gave convincing explanations that they do not see the age difference between them, as they share common interests, personalities and values. The Tribunal also gives weight to the fact that the sponsor’s children support the relationship and describe the positive impact the applicant has had on the sponsor, particularly on his willingness to socialise and his positive attitude.
The Tribunal is satisfied that the parties rely on each other for companionship and emotional support. At the hearing, they demonstrated affection towards each other and spoke positively and enthusiastically about their relationship and the care and support they give to each other. The Tribunal gives weight to the fact that the applicant cares for the sponsor, given his health conditions, and that the sponsor financially supports the applicant.
The Tribunal gives weight to the length of the relationship at the time of decision. The parties have now been married for more than 6 years and have not been separated for significant periods during that time.
The Tribunal is satisfied, based on this evidence, that the parties have a long-term commitment to each other and that their relationship is long term and ongoing.
Conclusion – spousal relationship
Having regard to all aspects of the relationship, the Tribunal is satisfied that, at the time of application and at the time of decision, the applicant and the sponsor had, and continue to have, a mutual commitment to a shared life to the exclusion of all others. The Tribunal accepts that their relationship is genuine and continuing. The Tribunal accepts that they live together and do not live separately and apart on a permanent basis.
The Tribunal finds the applicant is the spouse of Mr Shibli Nustas, who is an Australian citizen. She therefore meets the requirements of s 5F(2) at the time of application and at the time of decision.
The Tribunal finds the sponsor is not prohibited by cl 820.211(2B) from being a sponsoring partner. The applicant therefore meets cl 820.211(2)(a) at the time of application.
The Tribunal now considers the remaining requirements of cl 820.211(2). The Tribunal finds the applicant was sponsored by her spouse at the time of application and the sponsorship is still in force at the time of decision. She therefore meets cl 820.211(2)(c). The Tribunal finds the applicant held a substantive visa at the time of application, being a Subclass 600 Visitor visa. She therefore does not need to satisfy cl 820.211(2)(d).
The Tribunal finds the applicant met cl 820.211(2) at the time of application. The Tribunal is satisfied the applicant continues to meet cl 820.211(2) at the time of decision. She therefore meets cl 820.221(1) and, in turn, satisfies cl 820.221.
Secondary applicant
The secondary applicant was included in the visa application as a child of the primary applicant. She must therefore satisfy the secondary criteria in clauses 820.311 and 820.321. The applicant’s representative provided submissions about this issue, which the Tribunal has taken into account in its findings below.
At the time of application, cl 820.311 requires: that the secondary applicant is a ‘dependent child’ of the person who has applied for the visa; that the sponsorship in respect of the applicant includes the secondary applicant; and that the Minister has not decided to grant or refuse to grant a visa to the primary applicant.
At the time of decision, the secondary applicant must be dependent on, or a member of the family unit of, another person who is the holder of a Subclass 820 visa: cl 820.321.
‘Dependent child’ is defined in reg 1.03 and means a child or step-child of a person, who is not engaged to be married nor has a spouse or de facto partner, and has not turned 18; or if they have turned 18, is dependent on the person. Alternatively, the child must be incapacitated for work due to a total or partial loss of the child’s bodily or mental functions.

Where a child is over 18 and is not incapacitated, the decision-maker must consider whether the child is ‘dependent’ on another person as defined in reg 1.05A. Unlike the requirement for Subclass 309 secondary applicants, there is no upper age limit for Subclass 820 visa applicants claiming to be a dependent child, if they satisfy the definition of ‘dependent’ in reg 1.05A.
‘Dependent’ is defined in reg 1.05A(1) and states:
Subject to subregulation (2), a person (the first person) is dependent on another person if:
(a) at the time when it is necessary to establish whether the first person is dependent on the other person:
(i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and
(ii) the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or
(b) the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.
The Department accepted that the secondary applicant was a child of the primary applicant, and the Tribunal is satisfied on the available evidence, including the primary applicant’s divorce document, that the secondary applicant is the child of the primary applicant. The Tribunal accepts she is not engaged to be married, nor does she have a spouse or de facto partner. The Tribunal is satisfied that the secondary applicant was 17 years old at the time of the visa application on 23 July 2018, having been born in 2001. The Tribunal is satisfied that the sponsorship in respect of the applicant included the secondary applicant, and the Minister has not decided to grant or refuse a visa to the primary applicant. The secondary applicant therefore satisfied cl 820.311 at the time of application.
The Tribunal now considers the time of decision requirement in cl 820.321. As the secondary is now over 18, the Tribunal must be satisfied she is ‘dependent’ on the primary applicant. There is no evidence before the Tribunal that the secondary applicant is incapacitated for work due to the total or partial loss of her bodily or mental functions under reg 1.05A(1)(b). Therefore, the Tribunal must consider the definition of dependency in reg 1.05A(1)(a).
For there to be the necessary element of dependency, there need not be a necessity to provide the relevant support. The question to be addressed is whether, as a matter of fact, the first person is relying for support on the other person: Huynh v MIMA [2006] FCAFC 122 at [39], [44].
The Tribunal is satisfied the secondary applicant has been undertaking full time studies and has been living with the primary applicant and the sponsor since at least 2021. Evidence of her studies (Bachelor of Commerce at Macquarie University) has been provided to the Tribunal. She is currently undertaking an unpaid internship at an accounting firm. The Tribunal accepts she does not receive financial support from any other sources.
The Tribunal has found above that the primary applicant does not have her own source of income and relies on her husband, the sponsor, for financial support. The Federal Magistrates Court in Al Naqi v MIAC [2007] FMCA 874 took the view that ‘on a broad and practical level financial support for a person’s relatives, from their spouse, can be considered support by them if their spousal relationship is an essential or substantial part of the reason that the support is provided (at [16]).’ That indicates that even if the secondary applicant was receiving support from the sponsor, the primary applicant may still be considered to be the source of the support, because it is her spousal relationship with the sponsor that is the reason for the financial support being provided to the child. There is no suggestion the sponsor would have provided financial support to the secondary applicant for any reason other than his relationship with the child’s mother.
The Tribunal therefore finds the secondary applicant is financially dependent on the sponsor, and in turn, on the primary applicant, to meet her basic needs of food, shelter and clothing. The Tribunal finds that this dependency existed for a substantial period immediately before the time of decision and at the time of decision. The Tribunal finds that such reliance was greater than her reliance on any other source. The Tribunal is satisfied that the secondary applicant is dependent on the primary applicant for the purposes of cl 820.321.
Given the findings above, the appropriate course is to remit the applications for the visas to the Minister to consider the remaining criteria for the Subclass 820 visas.
DECISION
The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the directions that:
·the first-named applicant meets the following criteria for a Subclass 820 (Partner) visa:
o cl 820.211 of Schedule 2 to the Regulations; and
o cl 820.221 of Schedule 2 to the Regulations;
·the second-named applicant meets the following criteria for a Subclass 820 (Partner) visa:
o cl 820.311 of Schedule 2 to the Regulations; and
o is dependent on the primary visa applicant for the purposes of 820.321 of Schedule 2 to the Regulations.
Suseela Durvasula

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).