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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nguyen (Migration)

Details

AGLC: Nguyen (Migration) [2024] AATA 2783
Case: [2024] AATA 2783
Decision Date: 1 August 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by a Vietnamese national, sponsored by an Australian citizen. The primary issue was whether the applicant was the spouse of her sponsor at the time of the visa application and continued to be so at the time of the Tribunal's decision, and whether the secondary applicant, the applicant's daughter, met the criteria for inclusion in the application.

The Tribunal was required to determine if the parties were in a genuine and continuing spouse or de facto relationship, as mandated by clauses 820.211(2)(a) and 820.221 of the Migration Regulations 1994. This involved assessing all circumstances of the relationship, including financial aspects, the nature of the household, social interactions, and the commitment to each other, as outlined in regulation 1.15A. Additionally, the Tribunal had to consider whether the secondary applicant qualified as a dependent child under the relevant regulations.

The Tribunal found that the parties had demonstrated a mutual commitment to a shared life to the exclusion of all others, concluding that their relationship was genuine and continuing. Evidence of shared international travel, a lengthy relationship, a joint tenancy agreement, a joint bank account, insurance, and family support for the relationship contributed to this finding. The Tribunal was satisfied that the applicant met the criteria for the Subclass 820 visa, including being sponsored by her spouse, and that the secondary applicant was dependent on the primary applicant.

Consequently, the Tribunal remitted the applications for Partner (Temporary) (Class UK) visas for reconsideration, directing that the first-named applicant met the criteria for a Subclass 820 (Partner) visa, and that the second-named applicant also met the relevant criteria, including being dependent on the primary visa applicant.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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; ando 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; ando is dependent on the primary visa applicant for the purposes of 820.321 of Schedule 2 to the Regulations.Suseela DurvasulaMemberATTACHMENT - Extract from Migration Regulations 19941.15A 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).