Nguyen (Migration) - [2022] AATA 4600

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…

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) [2022] AATA 4600
Case: [2022] AATA 4600
Decision Date: 11 November 2022

CaseChat Overview and Summary

This matter concerned an appeal by an applicant for a Partner (Migrant) (Class BC) visa, Subclass 100, against a decision made by the Department of Immigration. The core dispute revolved around whether the applicant's relationship with her sponsor was genuine and continuing, as required for the visa. The decision under review was made by a delegate of the Minister, and the appeal was heard by a member of the Tribunal.

The Tribunal was required to determine whether the applicant and the sponsor had a genuine and continuing relationship, considering all the circumstances, including financial, household, social, and commitment aspects. Specifically, the Tribunal had to assess whether the evidence demonstrated a mutual commitment to a shared life to the exclusion of others, and that they lived together on a permanent basis. The Tribunal also needed to consider the validity of the marriage between the parties.

The Tribunal found that the parties were validly married, satisfying a key requirement. While acknowledging concerns and noting that the evidence was finely balanced, the Tribunal ultimately concluded that the evidence supported a finding of a genuine and continuing relationship. This conclusion was based on the presence of a child born of the relationship, evidence of shared business ownership, pooling of financial resources, joint travel and social activities, and a mutual commitment to a shared life. The Tribunal considered the interests of the child and the forthright nature of the evidence given at the hearing to be significant factors.

Consequently, the Tribunal remitted the application for reconsideration by the Department. The direction was that the applicant met the criteria under clause 100.221(2) of Schedule 2 of the Migration Regulations 1994, relating to being in a spouse relationship. The Department was to proceed to consider the remaining criteria for the Subclass 100 visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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 RegulationsT. QuinnMemberAttachment - Extract from Migration Regulations 19941.15ASpouse(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).

Ratio Decidendi

Legal Principle Established

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