NGUYEN (Migration)

[2022] AATA 4867

NGUYEN (Migration) [2022] AATA 4867 (15 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr MINH HIEP NGUYEN
Mr LE MINH HOA NGUYEN

REPRESENTATIVE:  Mr MICHAEL CAI (MARN: 1799864)

CASE NUMBER:  1837805

HOME AFFAIRS REFERENCE(S):          BCC2017/4499959

MEMBER:Russell Matheson

DATE:15 December 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl 820. cl.820.211(2) of Schedule 2 to the Regulations; and

·cl.820.221(1)(a) of Schedule 2 to the Regulations.

The secondary applicant meets:

·cl.820.311(a)(i) of Schedule 2 to the Regulations.

Statement made on 15 December 2022 at 4:19pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – financial, household and social aspects of relationship and nature of commitment – validly married – detailed, consistent and credible oral evidence and significant documentary and photographic evidence – member of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 820.211(2)(a), 820.221(1)(a), 820.311(a)(i)

CASE
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 to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant (the applicant) is a male national of Vietnam, born in February 1964. He applied for the visa on 28 November 2017 based on his relationship with his 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 because the delegate was not satisfied the applicant was the spouse of the sponsor. The applicant seeks review of the delegate’s decision.

4. The Tribunal exercised its discretion to hold the hearing by videoconference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by videoconference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by videoconference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. The applicants appeared before the Tribunal on 24 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor Mrs Thi Hang Nga Lam, who is the applicants’ Partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

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

   Consideration of claims and evidence

8. The issue in the present case is whether the applicant is the spouse of the sponsor as defined in s 5F of the Act.

9. The Tribunal has before it: the applicant’s file from the Department of Home Affairs (the Department); its own file; and a copy of the Department’s decision provided by the applicant to the Tribunal.

10. The evidence the parties provided at the Tribunal hearing is recorded throughout this decision record.

    .

    Whether the parties are in a spouse or de facto relationship

11. 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 permanent resident.

12. ‘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 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?

13. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant provided a copy of the marriage certificate registered under the Marriage Act 1961 (Cth) indicating the applicant and sponsor were married at Lansvale, New South Wales on 27 August 2016. There is no evidence before the Tribunal to indicate that the marriage is not valid. 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).

14. In forming an opinion as to whether they are in a marital relationship and in considering whether they have a mutual commitment to a shared life as husband and wife to the exclusion of all others, whether their relationship is genuine and continuing, and whether they live together and not separately and apart on a permanent basis as defined in s 5F(2)(b)-(d), the Tribunal has had regard to all the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship, the nature of the applicant’s and sponsor’s household and their commitment to each other as set out in reg 1.15A(3).

15. After careful consideration of all the evidence before it, the Tribunal has reached the conclusion that it is satisfied the applicant is the spouse of the sponsor within the meaning of s 5F of the Act. Below, the Tribunal sets out its consideration of the evidence under the relevant aspects of matters it must take into consideration under reg 1.15A(3), and the reasons for its decision.

16. The Tribunal had the benefit of the applicant’s and the sponsor’s oral evidence at the hearing and found their evidence to be detailed, consistent and overall, credible. The Tribunal gave all the evidence provided by the parties at the Tribunal hearing and evidence provided by the applicant to the Department and the Tribunal due regard. The applicant provided a significant amount of additional documentary and photographic evidence to the Tribunal.

17. The Tribunal acknowledges the delegate’s concerns set out in the primary decision record. The Tribunal discussed these with the applicant and the sponsor during the hearing and the Tribunal is satisfied that the parties were genuine and credible witnesses. 

    Are the other requirements for a spouse relationship met?

    Financial aspects

18. The Tribunal has considered the financial aspects of the relationship including any joint ownership of real estate or major assets, any joint liabilities, the extent of any pooling or sharing of financial resources, especially in relation to major financial commitments, whether any person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of daily household expenses.

19. The parties gave evidence that they had previously operated a joint account with the Commonwealth Bank of Australia (CBA) and their wages are deposited directly into the joint account, this account is now closed. The parties stated that they do not have any personal bank accounts and that they only operate one joint account with ANZ.  The applicant and sponsor have provided evidence of operating a joint account with the ANZ Bank. Statements provided showed transactions that included government allowances (Centrelink), salary credits, cash deposits, cash transfers, debit purchases, daily living expenses and payment of household bills. The parties informed the Tribunal that they have moved to Robinvale in Victoria, and they are getting paid cash to pick grapes and they are renting a room in a shared living arrangement.  

20. The applicant provided evidence of making the sponsor and his son 50% binding beneficiaries of his Rest superannuation account. The sponsor provided evidence of making the applicant a 100% binding beneficiary of her TAL superannuation account.

21. Overall, the Tribunal finds that there is a reasonable amount of evidence before it to demonstrate that the applicant and sponsor have pooled or shared their financial resources at the time of decision. The applicant and sponsor provided detailed evidence regarding their employment, individual incomes, payment of household bills, rental payments, the pooling and sharing of their financial resources and their future financial plans.

22. There is no evidence before the Tribunal that the parties have any joint ownership of real estate, major assets, joint liabilities or any one person in the relationship owes any legal obligation in respect of the other. The applicant has provided significant information regarding the financial aspects of the parties’ relationship in relation to the pooling and sharing of financial resources and the sharing of daily living expenses. The Tribunal places some weight on this aspect of the relationship.

    Nature of the household

23. The Tribunal has considered the nature of the household, including any joint responsibility for the care and support of children, the living arrangements and daily routine of the parties and the sharing of the responsibility for housework, to form an opinion as to whether the parties are living together and not living separately and apart on a permanent basis.

24. The applicant and sponsor in their written submissions and oral evidence gave detailed and consistent evidence about their living arrangements and establishing a household together, the Tribunal found them to be persuasive, genuine and credible. The Tribunal is satisfied that the parties live together. The parties provided evidence of sharing the household duties and responsibilities and individual tasks in detail. They have provided consistent evidence of their living arrangements and details about their daily lives, employment, income, work hours, health issues and social activities. The parties have provided a reasonable amount of documentary evidence addressed to them individually and jointly at their previous residential addresses at Sefton and Cabramatta such as a residential tenancy agreement, utility bills, car insurance, health insurance and other correspondence.

25. The parties explained that they were separated for a short time at the onset of the ongoing COVID-19 pandemic in 2020. They gave evidence that when the applicant travelled to Vietnam, the sponsor was unable to accompany him to Vietnam despite having purchased her own tickets. When the sponsor arrived at the airport, she was informed by authorities that her Vietnamese visa had expired without her realising. During this period, the sponsor decided to look for work, but owing to her age and lack of experience, she could only find work in Robinvale with the assistance of friends, she was planning to work temporarily and return to New South Wales (NSW) when the applicant returned from Vietnam. The applicant and sponsor later decided that they would re-locate to Robinvale on a permanent basis and obtain work. They further stated that their separation for a short period when the applicant returned for Vietnam was due to the pandemic and frequent lockdowns that altered their plans and forced their separation, as the applicant could not make arrangements to leave NSW at that time and travel to Robinvale. As such, the Applicant had no choice but to continue in his current job at the time and wait until circumstances were more stable and allow him to relocate to Robinvale to be with the sponsor.

26. The parties stated that they had notified government agencies that they were in a spousal relationship. The parties gave evidence that they have and continue to share joint responsibility for the care, comfort and support of the applicant’s son who is currently living with the applicant’s brother in New South Wales. The applicant stated that they are providing financial support for his son’s education and basic needs, such as food, clothing and shelter.  

27. The Tribunal accepts that the parties live together and that they have established a joint household. The Tribunal accepts that they share the responsibility for the household duties and the care and support of the applicant’s son.

    Social aspects

28. The Tribunal considered the social aspects of the relationship, including whether the parties represent themselves to other people as being married to each other, the opinions of friends and acquaintances about the nature of the relationship, and any basis on which the parties plan and undertake social activities.

29. The parties provided a significant amount of documentary and captioned photographic evidence of their social activities together in a variety of settings and attending significant events such as birthdays, weddings, and travelling together no Vietnam.

30. The parties also provided statutory declarations (Form 888) from the applicant’s brother and sponsor’s friend attesting to the genuineness of their relationship that give a reasonable insight into the inception and development of the relationship over time. Although limited, the Tribunal places some weight on the declarations made as convincing evidence of the parties being in a genuine and continuing relationship.  Overall, the Tribunal accepts that family and friends believe the parties’ relationship to be genuine and continuing. The parties gave evidence that their relationship is supported by both their families. 

31. The Tribunal is satisfied they plan and undertake joint social activities and represent themselves to others as being married to each other. The Tribunal accepts that the parties’ family and friends believe that they are in a genuine and continuing spousal relationship. The Tribunal is satisfied that there is family support for the relationship.

32. The Tribunal places some weight on the social aspects of the relationship.

    Commitment

33. The Tribunal has considered the nature of the parties’ commitment to each other, including the duration of the relationship, the length of time the parties have lived together, the degree of companionship and emotional support they provide each other and whether the parties view the relationship as a long-term one.

34. The applicant and sponsor claimed to have first met at a barbeque in February 2016 and married in August 2016. They have provided a copy of the marriage certificate registered pursuant to the Marriage Act 1961 (Cth) in Lansvale, NSW, on 27 August 2016. The Tribunal accepts the parties are lawfully married and have been in a relationship for over six years.

35. The parties provided evidence that since meeting and entering a committed relationship and living together they have provided each other with the emotional support, care and companionship that is expected of a married couple. They further stated that they have expressed to their family and friends in Australia and Vietnam that they are in a committed relationship and they themselves believe that their relationship is a long-term one.

36. The parties described their immense empathy and commitment towards each other and described how they have worked together to face and address any problems they have had. They provided strong evidence of caring for and supporting each other during highly emotional times and financial hardship during the COVID-19 lockdown. They also expressed their love for each other and spoke about their future and their plans to start their own business (contract farming) and a desire to save and purchase their own home.

37. As previously stated, (para 20) the applicant provided evidence of making the sponsor and his son 50% binding beneficiaries of his Rest superannuation account. The sponsor provided evidence of making the applicant a 100% binding beneficiary of her TAL superannuation account.

38. The applicant and sponsor admitted that they have had difficulties in their relationship, including a period of separation following some conflict and argument but they were able to resolve their problems and jointly made a conscious effort to maintain their relationship even though it had been turbulent for a limited period. The Tribunal found the parties to be genuine and forthright regarding their relationship.

39. The Tribunal is satisfied that the parties see their relationship as stable, mutually supportive and long term. The Tribunal considers their evidence about their commitment to each other to be plausible, persuasive and genuine.

40. The Tribunal notes that the applicant and the sponsor were able to articulate the reasons for their decision to form a relationship and spoke of their common interests, expectations and future together.

41. The Tribunal is satisfied the applicant and the sponsor derive a strong degree of companionship and emotional support from each other that is commensurate with a couple being in a genuine and continuing relationship. The Tribunal is satisfied the couple view their relationship as a long-term one.

42. The Tribunal is satisfied, having regard to the totality of the circumstances and the evidence provided, that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others. The Tribunal is satisfied their relationship is a genuine and continuing relationship and that they do not live separately and apart on a permanent basis.

    Findings

43. The Tribunal is satisfied, having had regard to the totality of the circumstances and the evidence provided at the hearing, that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others. The Tribunal is satisfied their relationship is genuine and continuing. The Tribunal is satisfied that they live together and not separately and apart on a permanent basis. Having considered all the evidence and the circumstances of the relationship as detailed above, the Tribunal is satisfied the parties were in a spousal relationship at the time of application.

44. The Tribunal is satisfied that the sponsor is not prohibited from being a sponsoring partner and continues to sponsor the applicant. The Tribunal is satisfied that the sponsor, at the time of the visa application and decision, was an Australian citizen who had turned 18.

45. The applicant’s movement records provide evidence of her having been the holder of a Visitor (Subclass FA-600) visa at the time of application, which was valid until 30 January 2018. He held this substantive visa upon applying for the Partner (Temporary) (Class UK) Subclass 820 visa on 28 November 2017. As the applicant held a substantive visa at the time of application, further requirements in cl.820.211(2)(d) need not be met.

1. Based on the above, the Tribunal is satisfied that the requirements of s.5F(2)(b)-(d) of the Act were met at the time the visa application was made and are met at the time of this decision.

2. Therefore, the applicant meets cl.820.211(2) and cl.820.221(1)(a).

3. The Tribunal is satisfied that the secondary visa applicant is a member of the family unit of, and made a combined application with, the first named applicant who satisfies the primary criteria in cl.820.321. Therefore, the secondary applicant meets the requirements of cl.820.311(a)(i) of Schedule 2 to the Regulations.

4. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for a Subclass 820 visa.

   DECISION

5. The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

   · cl.820.211(2) of Schedule 2 to the Regulations; and

   · cl.820.221(1)(a) of Schedule 2 to the Regulations.

   The secondary applicant meets:

   · cl.820.311(a)(i) of Schedule 2 to the Regulations.

   Russell Matheson
   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).