Nguyen (Migration)

Nguyen (Migration) [2022] AATA 4600 (11 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Thi Thuong Nguyen
REPRESENTATIVE:  Mr Youssef Haddad (MARN: 1278455)
CASE NUMBER:  1833710
HOME AFFAIRS REFERENCE(S):          BCC2015/2161952 OSF2014/0326990
MEMBER:T. Quinn
DATE:11 November 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Partner) visa:
·clause 100.221(2) of Schedule 2 to the Regulations

Statement made on 11 November 2022 at 5:27pm
CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Partner) – genuine and continuing relationship – validly married – child born of the relationship – shared business ownership – evidence of pooling of financial resources – joint travel and social activities – mutual commitment to a shared life – decision under review remitted
LEGISLATION
Marriage Act 1961
Migration Act 1958, ss 5, 65, 338, 347
Migration Regulations 1994, Schedule 2, cl 100.221; r 1.15
CASES
Cao v MIAC [2007] FMCA 225
He v MIBP [2017] FCAFC 206
Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61
Re MILGEA and Dhillon [1990] FCA 144
Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407
Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105
statement of decision and reasons
application for review

On 30 June 2014, the applicant (referred to as ‘the applicant’ or ‘the wife’) applied for a Partner visa[1] (‘the visa’) based on his relationship with her sponsor, Mr Ricky Ho (referred to as ‘the sponsor’ or ‘the husband’).[2]
[1]Specifically, a Partner (Provisional) (Class UF)(subclass 309) visa and a Partner (Migrant) (Class BC)(Subclass 100) visa.
[2]Pursuant to section 65 of the Migration Act 1958 (‘the Act’). At the time of the applicant’s application, Class UF contained only one subclass: Subclass 309 (Partner (Provisional) and Class BC contained only one subclass: Subclass 100 (Partner). The criteria for the grant of these visas are set out in Parts 309 and 100 of Schedule 2 to the Migration Regulations 1994 (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.
On 9 June 2015, a delegate of the Minister for Home Affairs (‘the delegate’) granted the applicant’s Provisional partner visa.[3]
[3]Being a Partner (Provisional)(Class UF)(Subclass 309) visa which is a temporary visa for offshore applicants.
On 9 November 2018, the delegate refused the applicant’s Migrant partner visa application, not being satisfied that the applicant and the sponsor (‘the applicants’) were in a spouse or de facto relationship as defined by sections 5F and 5CB (respectively) of the Act (‘the delegate’s decision’).[4]
[4]Being a Partner (Migrant) (Class BC)(Subclass 100) visa which is a permanent visa for applicants who have been onshore on a Provisional (Subclass 309) visa. See clause 100.221 of the Regulations.
On 16 November 2018, the review applicant applied for a review of the delegate’s decision with this Tribunal.[5]
[5] Pursuant to sections 338(2) and 347 of the Act.
The applicant was represented in relation to the review.
The applicant and the sponsor appeared before the Tribunal on 31 October 2022 to give evidence and present arguments. The Tribunal also received oral evidence from one of the sponsor’s adult children, Ms Le Thuy Vy (‘Ms Vy’). There were also many witnesses in attendance in person and remotely ready and willing to give evidence including two of the applicant’s sisters, the applicant’s mother and the sponsor’s sister. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
Having considered all of the evidence, documents and submissions before me, I am satisfied that applicant is the spouse of the sponsor and the appropriate course is to remit the application to the Department for reconsideration.
I have proceeded to a decision having regard to all the information before me. In reaching my decision, I have regarded:
a.all material filed by or on behalf of the applicant; and
b.other relevant documents on the Tribunal and Department files.
Not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the reasons set out below. The reasons incorporate reference only to that information found to be fundamental or materially significant to the determination of the issues in the case.
STATUTORY AND LEGAL FRAMEWORK
Clause 100.221 requires that the applicant meet one of five alternative requirements. These include clause 100.221(2) and (2A) which require, among other things, that at the time of this decision, the applicant is the spouse or de facto partner of the ‘sponsoring partner’. The ‘sponsoring partner’ is the person who was specified as the applicant’s spouse or de facto partner or intended spouse or de facto partner in the related Subclass 309 application, being an Australian citizen, permanent resident or eligible New Zealand citizen[6]
[6]unless the applicant was granted a Subclass 309 visa by Ministerial intervention, which is not the case here.
Clause 100.221(2)(a) of the Regulations requires that subclass 100 partner visa applicants must hold a subclass 309 (Partner (Provisional)) visa at the time of decision, which the applicant was granted in June 2015.[7]
[7]See delegate’s decision and folio 130 of Department file.
Clause 100.221(2)(c) of the Regulations requires that at least two years have passed since a subclass 100 partner visa application was made. This criterion is also satisfied.
Clause 100.221(2)(b) of the Regulations requires that the applicants are in a spouse (or de facto) relationship as defined by section 5F (or 5CB) of the Act. This is the issue in this case.
In the present case the applicant claims that she is the spouse of the ‘sponsoring partner’ (within the meaning of that term), Mr Ricky Ho (‘the sponsor’), who is an Australian citizen.[8] Based on the information before me I am satisfied that the sponsor is an Australian citizen.
[8]See folios 34, 90 and 95 of the Department file.
‘Spouse’ is defined in section 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.[9] In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in clause 1.15A(3) of the Regulations are effectively questions which must be answered.[10]
[9]Section 5F(2)(aa)-(d).
[10]He v MIBP [2017] FCAFC 206.
The matters outlined in clause 1.15A(3) of the Regulations (and any other circumstances of the relationship under clause 1.15A(2)) must be considered and, to the extent relevant, applied to the applicant’s case. Accordingly, I have carefully considered these matters in relation to the material and evidence before me. I recognise, however, that the Tribunal is an independent statutory body. I must therefore reach my own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor of clause 1.15A is relevant and applicable, independently of any conclusions reached by the delegate.
Compliance with the prescribed criteria turns on whether or not the criteria have been met and not on the objective existence of that fact.[11] In determining whether it is so satisfied, decision makers are not required to uncritically accept any or all of the claims made by the applicants and I have not done so. A decision maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion is not made out.[12]
[11]Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5 at 15.
[12]Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 at [7].
If a decision maker does not believe a particular witness, no detailed reasons need be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepts or rejects individual pieces of evidence.[13]
[13]Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67].
It is for the applicant, in this inquisitorial process, to put whatever evidence or argument they wish to a decision maker in order to enable that decision maker to reach the requisite state of satisfaction.[14]
CONSIDERATION OF CLAIMS AND EVIDENCE
[14]Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76].
Valid marriage
If the applicants are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicants have filed a copy of their Marriage Certificate with the Tribunal which indicates they were married in Vietnam on 6 September 2013.[15] On the evidence, the applicants were married to each other under a marriage that is valid for the purposes of the Act as required by section 5F(2)(a).[16]
[15] See folios 119 and 191 of the Department file.
[16] See Tribunal file and Part VA of the Marriage Act 1961.
Timeline
The sponsor was granted his Australian citizenship on 9 May 1990.[17]
[17] See Australian citizenship certificate at folio 131 of the Department file.
The sponsor sponsored his first wife to move to Australia and was married to her from May 1995-August 2008 and has two adult children from that marriage including Ms Vy who gave evidence at hearing.[18]
[18] See divorce order at folio 27 of the Department file.
The sponsor married his second wife on 14 September 2009 and after his sponsorship of her partner visa to move to Australia was unsuccessful, he and his second wife divorced on 18 September 2012.[19]
[19] See dissolution of marriage at folio 23 of the Department file.
The applicants met through the applicant’s sister in April 2012.[20]
[20]See folio 191 of the Department file and evidence at hearing.
The applicants married in Vietnam on 6 September 2013 and subsequently made the application which is the subject of this review on 30 June 2014.[21]
[21] See folios 119 and 191 of the Department file.
The applicant was granted her Provisional partner visa on 9 June 2015 and she arrived in Australia on that visa on 15 May 2016.
The applicants lodged their application for a Migrant partner visa on 1 February 2018.
The sponsor had sexual relations with another woman which resulted in a child, Lisa Ho (‘Lisa’), being born to that woman on 15 May 2017. The sponsor is listed as father and informant on that child’s birth certificate.[22] The sponsor signed a supporting contributory parent visa application in relation to that child in or around November 2017. This was not disclosed to the Department and was the subject of a natural justice letter sent to the applicants on 28 June 2018. The sponsor then withdrew his supporting contributory parent visa application on 20 July 2018.[23]
[22] See folios 135 and 190 of the Department file.
[23] See delegate’s decision and folio 193 of the Department file.
The applicant and sponsor had a child together, Aisha Ho (‘Aisha’), born on 12 September 2018. They have filed a copy of Aisha’s birth certificate at the request of the Tribunal which lists the applicant and sponsor as parents and informants.
In late 2018, the applicant started her own salon business, and the sponsor is a 49% shareholder of that business.[24]
[24] See business and financial documents filed 24 October 2022.
Financial aspects of the Relationship
Financial aspects of the relationship including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; and any sharing of day-to-day household expenses must be considered when assessing the financial aspects of the relationship.
The applicants have filed joint bank account statements from 2017-present, some utility bills, car related financial documents, BAS tax documents, insurance documents, financial reports, pay roll and superannuation documents individually and for the business. They have filed evidence of the sponsor’s 49% shareholding of the applicant’s salon business and many documents related to that business.[25] The applicants have also filed taxation and Centrelink documents which show there is a debt recovery in relation to a family tax benefit against the sponsor which the applicant has elected not to contribute to. I was troubled by this and enquired about it at hearing and the applicants gave consistent evidence that that debt related to the sponsor’s child Lisa and he is part way through repaying it. The applicant was very emotional during her evidence in relation to the sponsor’s extra marital affair and it is understandable that she does not want her income to be used towards repayment of a debt in relation to that child.
[25] See business and financial documents filed 24 October 2022.
The applicants gave consistent evidence that the applicant’s sister has recently separated, and they are living with her at present, together with their daughter Aisha, the applicant’s niece and the applicant’s mother who is also visiting from Vietnam and lives between this house and the house of the applicant’s other sister who lives in Australia. The applicants gave consistent evidence that they plan to buy a house but are prioritising the wellbeing of the applicant’s sister and the children at the moment. The applicants had good knowledge of each other’s income and the arrangements with the applicant’s salon although I note the sponsor gave inconsistent evidence about his wife’s work hours and then clarified that he does not always know what time she finishes work because he is at work himself. There were many concessions made by both the applicant and sponsor during the hearing in this way that led me to consider they were credible witnesses, giving authentic evidence.
The applicants gave consistent evidence about the transactions on the joint account that reflect the sponsor’s gambling addiction. They gave consistent evidence that his gambling caused a fight which ultimately led to him having an extra marital affair in 2016 and that the applicant has asked him to decrease his spending on gambling which he has done. There evidence was consistent in relation to their discussions about the sponsor’s gambling and consistent with the bank statements in terms of his more recent gambling behaviour. The applicant was unable to answer what her husband gambles but was forthright about this and indicated that she knew he enjoyed it.
The applicants have filed a bank account in the name of their daughter from 2021 showing regular transfers from both parents.[26]
[26] See submissions of 24 October 2022.
The evidence indicates there has been some pooling of financial resources, joint ownership of the applicant’s salon business, joint responsibility for household costs and sharing of day-to-day household expenses, including childcare fees and the sponsor’s gambling that both come out of the joint account. There is no joint purchase of real estate, but the applicants express an intention to jointly own a house in the future.
In the circumstances, I place some weight in the applicants’ favour in relation to the financial aspects of the relationship.
Nature of the Household
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 matters to be considered when assessing the nature of the household.
The applicants gave consistent evidence about the sponsor’s extra marital affair, that he has lost contact with the mother of Lisa and has not been in touch with his daughter Lisa since in or around 2019. They gave consistent evidence that the applicant did not know about the affair or the child until the Department’s natural justice letter in 2018. The applicant was very emotional when she gave evidence and when she was listening to her husband’s evidence on this topic. The applicants gave consistent evidence that the sponsor was at Lisa’s birth in May 2017, but their evidence was inconsistent about the time of day and where the applicant thought her husband was. I found this troubling.
The applicants now have a shared child who was also present at the hearing. Whilst disruptive, the child’s behaviour was indicative of a genuine relationship with both parents – sitting on their laps and directing attention to them during the hearing in such a way that suggested to me there is a genuine family unit. Aisha showed emotions in an authentic, spontaneous way that clearly indicated she has a strong bond with both parents, and I formed the view – based on this and the evidence given during hearing - that it would significantly impact her life if her parents were forced to live in separate countries. The applicants gave consistent evidence that the sponsor’s older two adult children have a regular presence in their lives and the life of Aisha. Ms Vy gave consistent evidence that she has a strong, positive relationship with her four-year-old half-sister and was helping care for Aisha during the hearing.
The applicants gave consistent evidence that they would like to have another child together. They gave consistent evidence about the applicant’s salon business, her workdays, how she spends her day off with Aisha and the sponsor’s minimal practical involvement in the business, being limited to weekend attendance and cleaning when necessary. Although some of the evidence about work times was inconsistent, appropriate concessions were made in this regard which is reflective of the fact that both parents are working and not always home or awake when their spouse finishes work.
The applicants gave consistent evidence that they are living with the applicant’s sister and her daughter to support her after her recent divorce and that the applicant’s mother is visiting presently living between their house and the applicant’s other sister’s house. There evidence was suggestive of a family living together.
The applicants have had a child together and plan to have another. They have filed many photos that suggest they are both involved as parents in Aisha’s life.[27] The applicant and the sponsor are listed as parents and informants on Aisha’s birth certificate.[28] The applicants have filed a bank account in the name of their daughter from 2021 showing regular transfers from both parents.[29]
[27]See Tribunal and Department file.
[28]See birth certificate filed 27 October 2022.
[29] See submissions of 24 October 2022.

In the circumstances, I place considerable weight in favour of the applicants in relation to the household aspects of the relationship.
Social Aspects of the Relationship
Whether the applicants represent themselves to other people as being married to each other, the opinion of the applicants’ friends and acquaintances about the nature of the relationship and any basis on which the applicants plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.
The applicants have filed many photos of the applicant and the sponsor undertaking shared activities, at home together, out with others – often over a meal, at celebratory events together, in Vietnam, sightseeing together and many photos with their daughter Aisha.
The applicants have filed many statutory declarations from friends and family in relation to their relationship and had eight other witnesses present either in person or over the telephone ready and willing to give evidence at hearing.
The applicants were wearing wedding rings at hearing which suggests they present to the world as married.
The applicants have filed evidence that the sponsor travelled to Vietnam in 2013 to meet and meet her parents and family and that they spoke to her parents about getting engaged and were married later the same year when the sponsor visited the applicant again.[30] Since, marrying the applicants have travelled together to Vietnam in 2017 and 2018.[31]
[30] See Department file.
[31] Ibid.
I consider it likely that there are aspects of the applicants’ marriage and relationship that have been motivated by securing a visa for the applicant. I note in this regard that the Full Federal Court has held that people enter into marriages with a variety of purposes and motives. It is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to material benefit or advancement, as for example with the hope of becoming eligible to reside in a particular country.[32]
[32] Re MILGEA and Dhillon [1990] FCA 144.
I place weight in the applicants’ favour in relation to the social aspects of the relationship.
Nature of the applicant and the sponsor’s commitment to each other
The duration of the relationship, the length of time during which the parties have lived together, the degree of companionship and emotional support that the parties draw from each other and whether the parties see the relationship as a long term one are all aspects to be considered in determining the nature of the parties’ commitment to each other.
The applicants have now been married for over nine years and lived together for over six years and their evidence and photos suggest the degree of companionship and support one would expect in a spousal relationship. However, the sponsor’s extra marital affair, including his presence at Lisa’s birth and being listed as father and informant on Lisa’ birth certificate (at the same address as Lisa’s mother, as opposed to the applicant’s address) is very problematic for the application before me. However, the Federal Magistrates Court of Australia has held that sexual infidelity during relationship does not automatically mean there is no relevant spouse relationship – it is a matter of fact and degree, to be considered - along with all the other circumstances of the relationship - in determining whether the parties had or have the requisite mutual commitment.[33]
[33] Cao v MIAC [2007] FMCA 225.
The applicants have now had a child together, Aisha, and although the applicant is the primary caregiver for this child it is clear the sponsor is also involved in her life and has a strong bond with her. In addition, Aisha has a bond with her two older half siblings.
The applicants both gave evidence about planning to buy a house together, having another child together and raising their family together. They gave relatively consistent evidence about their day-to-day life. They gave persuasive evidence about the running of the applicant’s business, their household and division of parenting tasks.
I place weight in the applicants’ favour in relation to their commitment to each other.
Other Matters
Many of the details in relation to the sponsor’s extra marital affair, his contributory parent visa application for Lisa and Lisa’s birth are covered by a confidentiality certificate on the Department file. However, the majority of this information was disclosed in the Department’s natural justice letter of 28 June 2018 and I exercise my discretion in relation to disclosure of any additional information at hearing or in this decision.
Conclusions
I have carefully considered all of the evidence before me. I am concerned by much of the evidence before me and consider the evidence for and against the applicants in this case is finely balanced. Ultimately, particularly given the interests of Aisha and her bond with both parents and her half siblings and the forthright, authentic nature of the evidence given at hearing, I consider the evidence supports a finding that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of others and that their relationship is genuine and continuing and that they live together, not separately and apart, on a permanent basis. I am satisfied that the applicant is in a spouse relationship with the sponsor and the applicant therefore satisfies clause 100.221(2) of Schedule 2 of the Regulations.
decision
The appropriate course is for this matter to be remitted for reconsideration by the Department to consider the remaining criteria for a Subclass 100 visa.
The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Partner) visa: clause 100.221(2) of Schedule 2 to the Regulations
T. Quinn
Member

Attachment - Extract from Migration Regulations 1994
1.15ASpouse
(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).

[2022] AATA 4600

11 November 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction