Nguyen (Migration)

[2022] AATA 3850

Nguyen (Migration) [2022] AATA 3850 (26 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Hoang Yen Nguyen

REPRESENTATIVE:  Ms Trang (Karen) Vo (MARN: 0635245)

CASE NUMBER:  1903202

HOME AFFAIRS REFERENCE(S):          BCC2016/1333340

MEMBER:Brygyda Maiden

DATE:26 October 2022

PLACE OF DECISION:  Melbourne

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

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

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

Statement made on 26 October 2022 at 3:59pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – validly married – financial, household and social aspects of relationship and nature of commitment – oral and documentary evidence and supporting statements – duration of relationship – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5C, 5CB, 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15(3), Schedule 2, cls 820.211(2), 802.221(1)(a)

CASES
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
MIEA v Pochi (1980) 4 ALD 139

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 applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the “Act”).

2. The applicant applied for the visa on 31 March 2016 based on her relationship with her 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”).

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.211(2)(a) as the delegate considered that the evidence and information provided to the Department of Home Affairs (the “Department”) was not sufficient to demonstrate that the applicant is the spouse or de facto partner of the sponsor as defined under section 5F and 5CB of the Act.

4. The applicant lodged a copy of the Department’s decision record dated 31 January 2019 as part of her application for review to the Tribunal dated 12 February 2019.

5. The applicant is a Vietnamese national and is currently 28 years old. The sponsor is currently 27 years old and is an Australian citizen. The Department file contains a copy of the sponsor’s birth certificate and the bio pages of the sponsor’s Australian passport.

6. The applicant appeared before the Tribunal on 19 October 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Thi Thong Nguyen (the sponsor’s mother) and Ms Hang Thi Nguyen (the applicant’s cousin). The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

7. The applicant was represented in relation to the review.

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

   Consideration of claims and evidence

9. The issue in the present case is whether the applicant is the spouse or de facto partner (as defined under s 5F or 5C of the Act) of the sponsor for the purposes of cl 820.211(2)(a).

   Are the parties in a spouse or de facto relationship?

10. Clauses 820.211(2)(a) and 820.221(1) 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 by birth. 

11. ‘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?

12. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal accepts as valid the marriage certificate issued in Victoria, Australia under the Births, Deaths and Marriages Registration Act 1996 (Vic) which indicates that the marriage was solemnised by the applicant and sponsor on 23 June 2015. 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). However, this evidence alone does not in the Tribunal’s view demonstrate a mutual commitment to a shared life together or a relationship that is genuine and continuing.

    Are the other requirements for a spouse relationship met?

13. In order to ascertain whether the requirements for a spouse relationship are met, the Tribunal has considered the Department file BCC20161333340, the Tribunal file, the documents submitted by the representative on the applicant’s behalf to the Tribunal, and the oral evidence of the applicant, sponsor and the witnesses at the hearing.

    Financial aspects of the relationship

14. The Tribunal has considered the financial aspects of the relationship, including any joint ownership of real estate or other major assets; joint liabilities; extent of any pooling of financial resources; whether one person in the relationship owes any legal obligations in respect of the other and the basis of any sharing of day-to-day household expenses.

    (a)  Do the parties have any joint ownership of real estate or other major assets?

15. The Tribunal accepts that the parties do not have any joint ownership of real estate or other major assets.  The applicant gave oral evidence that the parties have made no significant purchases together as they are living with the sponsor’s mother and do not need to purchase anything further. The Tribunal accepts this evidence.

    (b) Do the parties have any joint liabilities?

16. The applicant gave oral evidence at the hearing that the parties do not have any joint liabilities together.  The Tribunal accepts this evidence.

    (c) To what extent are the parties’ financial resources pooled?

17. The applicant submitted Commonwealth Bank transaction listings indicating that the parties opened a joint account on 2 June 2015, which was opened prior to the date of application on 1 April 2016 (the “Joint Account”). The Department file also contains an account confirmation from the Commonwealth Bank indicating that any account holder can operate the account and that both parties had at that time requested a bank card.  At the time of decision, the Joint Account is still in operation.

18. The Department file contains transaction records from 11 June 2015 until 22 June 2015, 9 September 2015 until 8 December 2015, 20 November 2015 until 16 March 2016 and the applicant submitted most transaction listings on the Joint Account from 1 June 2019 until 31 July 2022. 

19. The sponsor gave oral evidence that initially, his money did not go into the Joint Account, it went into a National Australia Bank account he had held since he was sixteen.  The Joint Account statements indicates that there is evidence that the parties’ wages and government payments have been paid into this account from time to time.  The sponsor gave oral evidence that he has started a new job with ANZ on 12 September 2022 and has had to open an ANZ bank account to have his ANZ wages paid into.  The Tribunal accepts this evidence.  Both parties gave consistent oral evidence that the sponsor then transfer his wages back into the Joint Account.  The applicant did not submit these ANZ statements or recent statements of the Joint Account.  However, the applicant gave oral evidence that all the parties’ income is deposited into the Joint Account so that it can be used to pay bills and insurance.  The Tribunal gives this some weight.

    (d)  To what extent does one person in the relationship owe any legal obligations in respect of the other?

20. In terms of the legal obligations owed by one party to the other, both parties provided consistent evidence that neither has a will. The applicant submitted a copy of:

    a.a printout of her Sunsuper superannuation account dated 6 February 2020 indicating that the preferred beneficiary of her superannuation is the sponsor.  The applicant gave oral evidence at the hearing that the sponsor is still the 100 percent beneficiary of her superannuation account.

    b.the sponsor’s Hostplus current beneficiary details as of 23 April 2021.  The applicant is the 100 percent non-binding beneficiary of the sponsor’s superannuation, and the sponsor also refers to the applicant as his wife.  The sponsor gave evidence at the hearing that the applicant is still the 100 percent beneficiary of his superannuation.

    The Tribunal places a small amount of weight on each party’s superannuation beneficiary nomination as beneficiaries can be quickly and easily changed.

    (e) What is the basis of any sharing of day-to-day household expenses?

21. In terms of the sharing of day-to-day household expenses the applicant submitted joint:

    a.utility bills for gas and electricity from February 2019 until August 2022 for the Winnington Street address; and

    b.water bills from February 2019 until June 2022 for the Winnington Street address.

22. The applicant gave oral evidence that the parties pay all the utility bills and because they are living with the sponsor’s mother and the property has a mortgage on it, the sponsor’s mother pays the mortgage repayments.

23. At the time of application, the Joint Account had significantly less evidence of sharing of day-to-day household expenses, however, there were examples of joint purchases, for example: (not an exhaustive list): department stores (Big W), alcohol (Safeway Liquor), groceries (Safeway, Thomas Dux groceries and Coles), petrol (United), restaurants (Thuan An Restaurant), clothing (Fila, H&M Australia) and insurance (BUPA).  However, the bulk of the transactions were transfers in and out of the Joint Account, and joint purchases were infrequent.  The Tribunal gives this little weight. 

24. At the time of decision the Joint Account indicates joint purchases for day-to-day household expenses, for example (not an exhaustive list): takeaway (KFC, McDonalds, Starbucks, JBS Charcoal Chicken, Pizza Hut, Subway and Boost), handbags (Michael Kors), groceries (Woolworths, Coles, Minh Khang Groceries, Costco, UC Hien Groceries, Aldi and Dai Phat 1 Supermarket), telecommunications (Optus and Vodafone), clothing (Uniqlo, Forever New, Kathmandu, Zara Australia and Just Jeans), stationery (Smiggle), restaurants (Phu Vinh Restaurant, Dong Ba 2 Restaurant, Song Huong Restaurant, Pancake Parlour and Phi Phi Restaurant), fuel (Fuelco, and United), department stores (Big W, Kmart, Myer, Best & Less and Harris Scarfe), utilities (Red Energy, Citi West Water), pharmacy (Ascot Vale Pharmacy, Terry White), alcohol (BWS Liquor, Liquorland and Dan Murphy’s), hardware (Bunnings), carparking (Wilsons), donations (Wildlife Victoria, Community Enterprise Foundation), insurance (AAMI and BUPA) and vehicle registration (VicRoads).  There is a noticeable increase in joint spending for day-to-day household expenses from the time of application to the time of decision.  The Tribunal gives this weight.

25. Additionally, the applicant submitted numerous invoices for the joint purchase of various items with one dating from 21 May 2015 which was for the purchase of a modern chrome plated staircase chandelier in both parties’ names, with the bulk of the receipts being from January 2018 until June 2021, with the latest receipt submitted by the applicant being a tax receipt from the Community Enterprise Foundation dated 7 January 2022.  The Tribunal gives this some weight.

26. The applicant submitted in her name:

    a.AAMI car insurance issued on 12 February 2019, 9 January 2020 and on 11 January 2021 for a 2008 Toyota Prius at the Winnington Street address which also lists the sponsor as a driver; and

    b.an undated letter from Flybuys congratulating the applicant for being part of the program at the Winnington Street address.

27. In terms of the financial aspects of the relationship, at the time of application the parties had no joint ownership of real estate or other major assets and no joint liabilities and neither party has any legal liability to the other.  There is some evidence of the pooling of resources as the parties opened a Joint Account approximately 10 months prior to the date of application.  There is little evidence of the sharing of day-to-day household expenses in the Joint Account.  On balance, at the time of application, the Tribunal gives the financial aspects of the relationship little weight of being indicative that the parties being in a genuine and continuing relationship.

28. At the time of decision, the parties still have no joint ownership of real estate or other major assets and no joint liabilities.  There is some evidence of a party owing a legal obligation to the other in that each party is the 100 percent beneficiary of the other’s superannuation account and the parties have no wills.  Compared with the time of application, there is greater evidence of the pooling of financial resources with both parties’ wages being paid or transferred into the Joint Account and a significant increase in the evidence in the Joint Account and by way of shared bills and invoices that there is clear joint spending of day-to-day household expenses by the parties.   On balance, the Tribunal gives the financial aspects of the relationship some weight as being indicative of the parties’ being in a genuine and continuing relationship.

    Nature of the household

29. The Tribunal has considered evidence of the nature of the parties’ household, including any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility of housework.

    (a) Is there joint responsibility for care and support of children?

30. The parties gave evidence at the hearing that they do not have any children together. 

31. The applicant gave oral evidence that the parties are not currently applying any contraceptive measures and are not planning to have children right away other than if they naturally come. 

    (b)  What are the living arrangements of the parties?

32. The parties gave consistent oral evidence that they had been living together since 2015 after they were married and live with the sponsor’s mother.  Both parties confirmed that there has never been a time when they have lived separately and apart.

33. The applicant also submitted numerous pieces of correspondence addressed to herself or both parties and numerous photographs of parcels addressed to both parties at the Winnington Street address.

34. The sponsor’s mother (Ms Thi Thoung Nguyen) gave oral evidence that the parties are living with her though her evidence was that they started living with her after they were married in 2016.  The Tribunal accepts that there may be some confusion with dates due to how much time has elapsed and given that the parties were legally married on 23 June 2015 but had a wedding party on 5 March 2016 (the applicant submitted photographs of the parties in wedding attire and with their guests in support of this and a copy of a non-itemised receipt from Plume Restaurant dated 5 March 2016 with the notation “wedding party for 5/3/2016 Hoang Yen & Anthony Nguyen Plume Chinese Restaurant” in the amount of $1600 including GST).  The Tribunal accepts that at the time of application and time of decision that the parties have lived together with the sponsor’s mother and gives this evidence some weight.

35. The parties gave consistent oral evidence that the applicant drives the sponsor to the train station and that he catches public transport to work and works from 8:00am to 4:30pm.  He then normally arrives home at 6pm.  After the applicant drops the sponsor at the train station, she then goes to work at 8:30am and comes home at 6pm.  The Tribunal accepts this evidence

    (c) Is there any sharing of housework?

36. The applicant submitted photographs of the parties washing dishes together, of the applicant folding laundry and the applicant sweeping the floor.

37. According to the sponsor’s statutory declaration dated 18 September 2020, the parties have joint and shared responsibility for the housework, splitting daily chores like laundry, cleaning their room and going grocery shopping together. Consistently, the applicant’s statutory declaration states that the parties help the sponsor’s mother with the housework and sometimes go shopping together.  The Tribunal notes that these statutory declarations were sworn when Melbourne was in and out of lockdown due to the COVID-19 pandemic.

38. The applicant testified that the sponsor sometimes shares cleaning around the house, and he does the lawn mowing.  The sponsor’s mother normally does the cooking, and the applicant helps her with the dishes. The applicant does a major clean on Tuesdays which is her day off, and during weekdays she does small things like putting away clothing and cleaning the bathroom.  The of the shopping is done by the applicant and the sponsor’s mother.

39. The sponsor acknowledged that he was lucky and did little around the house as his mother and the applicant were generally “on top of things”.  In addition to the lawn mowing, the sponsor also takes out the bins.

40. Ms Thi Thoung Nguyen gave oral evidence that she cooks for the parties, and the sponsor mows the lawn, takes out the garbage and sometimes he helps inside.

41. The Tribunal finds that there is limited sharing of housework inside the house, with the bulk of that being assumed by the applicant.  Meals are cooked predominantly by the sponsor’s mother and the sponsor mows the lawn, takes out the garbage and sometimes helps inside.  The Tribunal gives the sharing of housework by the parties some weight.

42. In terms of the nature of the household, at the time of application and at the time of decision the parties did not have any children and have lived together and continue to live together with the sponsor’s mother.  At the time of application there was limited evidence of the sharing of housework, and there is evidence that over time the apportionment of responsibilities has changed.  At the time of decision, the evidence suggests that the applicant does the bulk of the inside housework and the sponsor does the mowing and taking out of the bins.  On balance, the Tribunal finds that there was limited evidence of the nature of the relationship at the time of application.   At the time of decision, there is some evidence of the nature of the relationship to indicate that the parties are in a genuine and continuing spousal relationship.

    Social aspects of the relationship

43. The Tribunal has considered evidence of the social aspects of the relationship, including whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship, and any basis on which the persons plan and undertake joint social activities.

    (a) Do the parties represent themselves to other people as being married to each other?

1. The applicant submitted copies of her tax return for the periods of 1 July 2015 to 30 June 2016, 1 July 2016 to 30 June 2017, 1 July 2017 to 30 June 2018, 1 July 2018 to 30 June 2019, 1 July 2019 to 30 June 2020 and 1 July 2021 to 30 June 2022 noting her spouse as the sponsor and her home address as Winnington Street. 

2. The applicant also submitted the sponsor’s 2021-22 tax return summary which indicates that his spouse is the applicant, and the parties’ home address is Winnington Street.

3. The parties have also had a wedding party at Plume Chinese restaurant on 5 March 2016, and there are photographs of the parties in wedding attire and their guests.

4. The Tribunal accepts that there is evidence at the time of application and time of decision of the parties representing themselves to government departments and others as being married to each other and gives this some weight.

   (b) What is the opinion of friends and acquaintances about the nature of the relationship?

5. In terms of the opinion of friends and acquaintances about the nature of the parties’ relationship, the Department file contains two form 888 statutory declarations from the parties’ family members in support of the parties’ relationship, including that of:

   a.Thi Thuong Nguyen, dated 7 June 2015 who is the sponsor’s mother.  At that stage, Ms Nguyen had known the applicant for over a year, and had seen her every day as the parties live with her. She states that the parties are obviously in love and are planning their future together.

   The applicant also provided another statutory declaration sworn by Ms Nguyen on 18 September 2020.  Therein she stated that the applicant worries about the people around her and that is what makes the sponsor love her so much.  Ms Nguyen states that she knows how the parties live their lives and share their lives as she lives with them, and has seen them share their money, buy things together and help each other around the house and have shown her that they love each other “immensely”.

   b.Mr Van Doan Nguyen, dated 7 July 2015 who is the applicant’s uncle. At that stage, he had known the sponsor for around 1.5 years.  The Tribunal notes that the parties met in March 2014, so this evidence is not quite accurate, though the Tribunal does not put any negative weight on the amount of time Mr Nguyen states that he has known the sponsor.  Mr Nguyen claims to see the parties two or three times a month and has seen the parties’ relationship develop from boy and girl friends to a young married couple planning their future.

   The applicant also provided another statutory declaration of Mr Nguyen dated 18 September 2020.  The parties would often visit Mr Nguyen’s family but have not recently due to the pandemic restrictions.  He has seen when visiting the parties’ home, that they would cook together, and the sponsor would do the dishes as “he is not that good at cooking”.  Mr Nguyen sees that the sponsor tries his best to help the applicant which indicates to Mr Nguyen that the sponsor cares for her.  Mr Ngyuen is confident that the parties are truly in love.

6. The applicant submitted statutory declarations from:

   a.Yen My Thi Huynh dated 19 September 2020.  Ms Huynh is a school friend of the applicant and as at the time of the statutory declaration had known the applicant for six years. She states that the parties “…have a special chemistry that you can only see in genuine and loving couples.”   She has been on many gatherings and outings with the parties and has heard from the applicant about how romantic the sponsor is and how he loves to surprise the applicant with little gifts which the applicant would show Ms Huynh.  Ms Huynh gave an example which occurred during a birthday party where she saw the sponsor putting food on the applicant’s plate and was caring for what she ate and drinks.

   b.Tony Nguyen dated 21 September 2020.  Mr Nguyen has known the sponsor since they were in grade 1 at St Paul’s Primary School and he was the best man at the parties’ wedding.  He is also the applicant’s cousin.  He sees the parties and family parties and quite often they have lunch and dinner outings together as well with other friends.  According to Mr Nguyen the applicant is “…a very honest happy and altruistic person who always puts others before herself.  Anthony [the sponsor] is a mature and caring person which is why I believe their relationship will be continuing as I constantly see them bring out these qualities in each other.”

   The sponsor gave oral evidence at the hearing, that he has not spoken to Mr Nguyen for some time.  According the applicant’s oral evidence the sponsor and Mr Nguyen were close friends, were at the same school, still have a good relationship but they are not close friends and have not been in in touch for quite a long time and not recently.  Accordingly, given that the sponsor and Mr Nguyen seem to have lost touch in recent times, the Tribunal gives Mr Nguyen’s statement some weight only.

7. Ms Hong Thi Nguyen gave oral evidence at the hearing. Ms Nguyen is the applicant’s cousin and has known the sponsor since 2016.  She states that the sponsor is very thoughtful about his own family and also the applicant’s family, the parties send money to help the applicant’s family. Ms Nguyen saw the parties as a couple regularly before the COVID-19 pandemic, not during the lockdown, and since the sponsor recently has obtained full time employment then monthly or if her family has a party, maybe every two weeks.  The Tribunal gives this evidence some weight.

8. The Tribunal gives the statutory declaration and witness evidence of the parties’ friends and family weight as they provide specific examples and provide the Tribunal insight into the declarants’ opinion as to the nature of the parties’ relationship.

9. The applicant submitted the will of Ms Thi Thuong Nguyen dated 15 May 2019 indicating that she divided her estate into two equal shares: one to the sponsor and the other to the applicant.  Ms Nguyen also gave oral evidence at the hearing that she gave the parties’ equal shares because her daughter in-law (the applicant) loves and cares for her, and she only has one son, the sponsor, so she decided to give the parties equal shares in her will.  The Tribunal gives this evidence weight.

   (c) Is there any basis on which the persons plan and undertake joint social activities?

10. In terms of the basis on which the parties plan and undertake joint social activities, in addition to the examples mentioned in the statutory declarations above, the applicant submitted a bundle of photographs from 2015 until 2019  depicting the parties (not an exhaustive list) at dinner with others, during their wedding party, of the sponsor’s birthday, of the applicant’s birthday, out at dinner together, of the applicant attending a wedding with the sponsor’s mother, attending the wedding of others, attending parties, on the sponsor’s graduation, going out together, going out to dinner with family and friends, on Lunar New Year, at family birthdays and on holidays together, during Christmas time with the applicant’s cousins, shopping and gardening during lockdown.  Some of the photographs were labelled and to some extent dated.

11. According to the sponsor’s statutory declaration dated 18 September 2020, the parties go on dates to the city, try new food at restaurants and walk together daily for 45 minutes.  The applicant’s statutory declaration dated 18 September 2020 states that the parties go out to eat, learn “delicious foods” from the sponsor’s mother and spent about 45 minutes a day walking together.  During lockdown the applicant mentioned that the walking was occurring during the COVID-19 lockdowns.

12. In relation to the social aspects of the relationship at the time of application, there is evidence that the parties have represented themselves to others (including the ATO) as being married and the Tribunal is satisfied that the parties’ friends and family consider that their relationship is genuine.  There is evidence that the parties socialise together, with their families and others.  The Tribunal gives the social aspects of the parties’ relationship weight to indicate that the parties are in a genuine and continuing relationship and have a mutual commitment to a shared life as a married couple to the exclusion of all others.

13. At the time of decision, the evidence pertaining to the social aspects of the parties’ relationship has increased.  The Tribunal is satisfied that the parties continue to represent themselves to others as being married, and that their friends and family consider their relationship to be genuine and continuing.  A number of statutory declarations were provided in support of the parties’ relationship which the Tribunal accepts and gives weight to as well as witness evidence in the hearing.  There is evidence that the parties have continued to socialise together and with others.  At the time of decision, the Tribunal gives the social aspects of the parties’ relationship weight to indicate that the parties are in a genuine and continuing relationship and have a mutual commitment to a shared life as a married couple to the exclusion of all others.

    Nature of persons’ commitment to each other

14. The Tribunal has considered evidence of the nature of the persons’ 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 that the persons draw from each other and whether the persons see the relationship as a long-term one.

    (a) What is the duration of the parties’ relationship?

15. The Tribunal accepts the duration of the parties’ relationship has been reasonably long. According to the applicant’s statutory declaration on the Department file dated 30 March 2016, the parties met in March 2014 at a party.  In the same month, on 25 March 2014 the sponsor asked the applicant to marry him, and on 23 June 2015 the parties were married and spent their honeymoon on the Gold Coast.  Photographs were submitted by the applicant of the parties’ honeymoon on the Gold Coast.  The following year on 5 March 2016, the parties had a wedding party with guests where the applicant and sponsor wore wedding attire.

16. At the time of application, the parties had been in a serious relationship for over two years including being married for almost ten months.  At the time of decision, the parties have been in a serious relationship for over eight years and married for over seven years.  At the time of decision and time of application the Tribunal gives the duration of the parties’ relationship weight.

    (b) What is the length of time that the parties have lived together?

17. In terms of the length of time that the parties have lived together, according to the sponsor’s statutory declaration dated 18 September 2020, at that time the parties had lived together for six years with the sponsor’s mother.  This is consistent with the applicant’s statutory declaration dated 18 September 2020.

18. The applicant gave oral evidence at the hearing that the parties began to live together in June 2015 at the Winnington Street address with the sponsor’s mother and are still living there at the time of decision.

19. At the time of application, the parties had been living together for approximately ten months and at the time of decision the parties are still living together and have been for in excess of seven years.  The Tribunal gives this evidence weight.

    (c) What is the degree of companionship and emotional support that they draw from each other?

20. In terms of the degree of companionship that the parties draw from each other, the applicant submitted documentation indicating that the parties have travelled together, including:

    a.a tax invoice from Tigerair showing flights booked and paid for both parties from Melbourne to Sydney departing on 27 January 2018 and returning on 28 January 2019.  The applicant also submitted photographs of the parties in Sydney together and with others.

    b.confirmed airline reservations on Vietnam Airlines indicating that the parties have travelled to Hanoi, Vietnam on Monday 19 November 2018 and returned to Melbourne on 11 December 2018.  The applicant also submitted photographs of their trip to Vietnam including of the parties visiting the applicant’s family.  Additionally, the applicant submitted a guest folio for the Kimtho Hotel indicating that both parties stayed there for one night from 21/11 until 22/11 though it is not clear from the document during which year.   The applicant also submitted what appears to be a receipt from the Hotel Hung Trang dated 24 November 2018 indicating that both parties stayed there though it is not clear for how long.

    The Tribunal gives this evidence some weight only as parties can travel together for a variety of reasons which are not attributable to them being in a genuine and continuing spousal relationship.

21. There is also evidence of the parties sending each other cards (for example, birthday, graduation, and Valentine’s day).  The first copy of a card submitted to the Tribunal was dated 30 April 2016.  The Tribunal gives this evidence some weight.

22. According to the sponsor’s statutory declaration dated 18 September 2020, the applicant has supported the sponsor a lot with job interviews and “constantly failing”.  The applicant is the only person the “sponsor can trust with his life” (though the sponsor clarified this in oral evidence at the hearing, and also included his mother in people he could trust with his life). The applicant challenges, motivates and makes the sponsor happy. The Tribunal gives this evidence weight.

23. The applicant in her statutory declaration dated 18 September 2020 states that the sponsor always gives her “surprises, gestures and actions that I think are difficult for a man to do.  We always found a common voice even though our life is still difficult right now.”  The sponsor supports her work and takes care of her parents. The sponsor’s support for the applicant’s parents is consistent with the oral evidence of Ms Hong Thi Nguyen at the hearing. The Tribunal gives this evidence weight.

24. During the hearing, the applicant was at one stage visibly emotional and clutched the sponsor.  She also gave evidence that he provided her emotional support during the COVID lockdowns in Melbourne and when she received the delegate’s decision.  The applicant stated that she was very stressed and that the sponsor was beside her, supporting her emotionally. Consistent with his statutory declaration, the sponsor gave evidence that the applicant had also given him emotional support during the lockdowns as neither one of them had a job, she motivated him with job applications, to work hard, and helped him improve as a person.  The Tribunal gives this evidence weight.

    (d) Do the parties see the relationship as long-term?

25. The parties gave consistent oral evidence of their future plans to start a family, buy a house together and travel to Vietnam to see the applicant’s family.  Both parties confirmed that they had $40,000 in savings and may be in a position to buy a house next year.  The sponsor also gave oral evidence that because he had just started working with ANZ, the plan would be to go to Vietnam next year.  The Tribunal gives this evidence weight.

26. The sponsor also gave oral evidence that if the applicant was unable to stay in Australia and had to return to Vietnam, that he had not really thought this eventuality through though most likely he would have to go to Vietnam to live with her.  The Tribunal gives this weight.

27. In terms of the nature of the persons’ commitment to each other, at the time of application the parties had been in a relationship for over two years and married and living together for approximately ten months.  There is limited evidence that the parties drew emotional support from each other or saw the relationship as long term.  In terms of the nature of the persons’ commitment to each other at the time of application there is some evidence that indicates that the parties are in a genuine and continuing relationship, have a mutual commitment to a shared life to the exclusion of all others and that the parties live together and not separately and apart on a permanent basis.

28. At the time of decision, the parties have been in a relationship for over eight years and married and living together for over seven years.  There is clear evidence that the parties draw emotional support from each other, and they have common and clear future plans together which tends to indicate that the parties see their relationship are long term.  In terms of the nature of the persons’ commitment to each other at the time of application there is clear evidence that indicates that the parties are in a genuine and continuing relationship, have a mutual commitment to a shared life to the exclusion of all others and that the parties live together and not separately and apart on a permanent basis.

    Time of application requirements

29. The main issue for determination is whether, at the time of application on 1 April 2016, the applicant and the sponsor were each other’s spouse for the purposes of the Act.

30. Middleton J stated in Jayasinghe v MIMA [2006] FCA 1700 at [35]:

    This does not mean that evidence subsequent to the visa application does not need to be considered at all. Evidence of events subsequent to the visa application is relevant if it ‘tends logically to show the existence or non-existence of facts relevant to the issue to be determined’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. The Tribunal must consider all relevant evidence, which may include evidence of events subsequent to the date of application insofar as it assists in the task of determining whether the appellant and the sponsor were in a marriage relationship at the time of the application. The question of whether particular evidence is relevant and the weight it is to be given is clearly a matter for the Tribunal.

31. Accordingly, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application.

32. For the reasons provided in relation to the reg 1.15A matters, the Tribunal is satisfied that at the time of application, the applicant and sponsor:

    a.were married to each other under a marriage that is valid for the purposes of the Act as required pursuant to s 5F(2)(a) of the Act;

    b.had a mutual commitment to a shared life as a married couple to the exclusion of all others as required pursuant to s 5F(2)(b) of the Act;

    c.had a relationship between them that is genuine and continuing pursuant to s 5F(2)(c) of the Act; and

    d.live together as required pursuant to s 5(2)F(d)(i).

33. Therefore, the Tribunal determines that the applicant and sponsor meet the definition of ‘spouse’ as set out in s 5F of the Act.

34. The ‘spouse’ requirement is not the only requirement of cl 820.211(2) which must be met. The Tribunal finds that cl 820.211(2)(a) is met as the applicant is the spouse of an Australian citizen by birth and there is no information before the Tribunal indicating that the circumstances in cl 820.211(2B) apply, hence the Tribunal finds that cl 820.211(2)(a)(ii) is met.

35. The Tribunal also finds that the applicant’s spouse is over 18 years old being born in 1995 and the applicant is sponsored by the spouse. Therefore, cl 820.211(2)(c)(i) is satisfied.

36. The Department’s decision record of 31 January 2019 indicates that on 10 October 2012 the applicant was the holder of a Student (subclass 573) visa and on 1 April 2016 the applicant lodged a Partner (Subclass 820/801) visa application. Accordingly, at the time of application the applicant held a ‘substantive visa’ as defined under s 5 of the Act, and therefore, the requirements in cl 820.211(2)(d) do not apply.

37. The Tribunal finds that at the time of application the requirements in cl 820.211(2) were satisfied.

    Time of decision criteria

1. The Tribunal finds that the applicant continues to meet the requirements in cl 820.211(2) and accordingly, the applicant meets cl 820.221(1)(a) at the time of decision.

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

   Decision

3. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

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

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

   Brygyda Maiden
   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).