Nguyen (Migration)

[2022] AATA 3854

Nguyen (Migration) [2022] AATA 3854 (24 October 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mrs Thi Thu Nguyen

REPRESENTATIVE:  Mr Huu Loc Nguyen (MARN: 1795573)

CASE NUMBER:  1832241

HOME AFFAIRS REFERENCE(S):          CLF2014/66989

MEMBER:Donna Petrovich

DATE:24 October 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl 801.221(2) of Schedule 2 to the Regulations

Statement made on 24 October 2022 at 11:14am

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – genuine and continuing spousal relationship – validly married – financial, household and social aspects of relationship and nature of commitment – substantial length of relationship, one child and intention for more – extensive, consistent and credible evidence – ground for previous refusal no longer in question – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cl 801.221(2)(c)

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 on 1 November 2018 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 7 May 2014 on the basis of her relationship with her sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 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 applicant did not satisfy cl 801.  In particular, the delegate determined that cl. 801.221(2) was not met.  Clause 801.221(2) requires that the applicant, at the time of decision, is the spouse or de facto partner of the sponsoring partner.  Cl. 801.221(2) of the Regulations was found not to be met as the delegate was not satisfied that the couple were in a genuine and continuing relationship.  

4. Various factors contributed to this finding by the delegate, including the lack of a DNA test in relation to the claimed child of the relationship and the delegate’s concerns as to identity of the child’s father. The delegate raised an allegation of a fraudulent claim of a family payment to the sponsor based on the assumption that he was not the child’s father.  Further, the delegate was also not satisfied that the couple lived at the same residence and held concerns relating to the financial nature of their relationship. 

5. The applicant appeared before the Tribunal on 12 October 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Huy Hoang Vu (the applicant’s partner), Ms Vu Thi Thu Hoai and Nguyen Bach Thi To Loan. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The applicant was 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.

   Background

8. The applicant is a thirty-two (32) year old Vietnamese woman.  In her statutory declaration dated 12 September (year of signing not provided) and submitted to the Tribunal under cover of an email dated 22 December 2021, the applicant claims that she first came to Australia on 20 January 2013 on a subclass 573 Student visa.  After meeting the sponsor through friends, the couple established a relationship and moved into together. 

9. On 22 January 2014, the couple married.  This was followed by their wedding reception at Gold Leaf Restaurant on 25 January 2014, with approximately 60 guests in attendance.  When the applicant found she was pregnant, the couple assumed parenting responsibilities for the child.  The couple claim that a DNA test was not undertaken as the sponsor has assumed responsibility for the child as his own and they do not believe that a DNA test will change the relationship that the couple have with the little girl.  At the time of the request by the Department for proof of DNA, the child’s parentage was not in question.

10. In 2013 the applicant initially came to Australia on a Student visa.  After meeting and marrying the sponsor, the applicant lodged an application for a Partner visa in September 2013, which was refused on 11 June 2015 by the Department of Home Affairs (the Department).  This decision was remitted back to the Department following a review by the Administrative Appeal Tribunal (the Tribunal). 

11. A subclass 820 visa was granted on 14 September 2017.  Following reassessment, the Department refused the subclause 801 visa on 1 November 2018.  An application for review was then lodged with the Tribunal on 2 November 2018.

12. The applicant works as a packer for a retail clothing company, whilst the sponsor is employed as a floor attendant at Pickles (a car Auction house).  The couple have their own savings.  In June 2021, with the assistance of family, they purchased their own home in Deer Park.  They now pay a mortgage.  The couple share living expenses from savings in their joint bank accounts with Westpac and Commonwealth Banks.  The couple have their wages paid into these bank accounts.

13. The applicant and sponsor have lived together for nine (9) years.  They have provided evidence that they have lived together permanently, except on two (2) occasions when the applicant visited family in Vietnam.  On one occasion, the applicant took her daughter with her to Vietnam, but on the other occasion she left her daughter with the sponsor.  On both occasions, the couple were apart for a period of approximately three (3) weeks.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the applicant and sponsor are in a genuine and continuing relationship, have a mutual commitment to a shared life and are married to the exclusion of all others.

    SPOUSE/DEFACTO (cl 801.221(2))

    Whether the parties are in a spouse or de facto relationship

15. Relevantly to this matter, cl 801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor, Mr Huy Hoang Vu, who is an Australian citizen and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

16. ‘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 of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and sponsor’s 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?

17. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant and sponsor were married on 22 January 2014. The applicant provided a copy of the Certificate of Marriage. Photographs of their wedding reception, with family and friends in attendance, were also provided to the Tribunal.  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).

    Are the other requirements for a spouse relationship met?

    Financial aspects of the relationship

18. Both the applicant and sponsor are now employed full time.  The applicant works as a pick packer in a wholesale clothing company, whilst the sponsor works on the floor at Pickles Auto Auctions.

19. The Tribunal was provided with substantial evidence relating to the financial aspects of the relationship.  The evidence submitted related to their bills and joint bank accounts.  This material showed transactions of day- to- day life. 

20. The Westpac bank account statements show deposits of the applicant’s wages and living expense transactions for items such as food, their daughter’s school fees, and other incidentals.  The sponsor’s wages are paid into the Commonwealth bank account.  The money in the Commonwealth bank account is used to pay the mortgage on their jointly owned property and utility bills.  It is also used as a savings account for the couple.

21. The Tribunal heard about the couple’s furniture purchases and was provided with receipts for a television and fridge.

22. The Tribunal received extensive documentation relating to the couple’s financial resources and legal obligations, including a joint mortgage and superannuation statements naming the applicant as a beneficiary.

23. The Tribunal considered the extensive documentation evidencing the extent of their financial commitment to the relationship, and corroborating submissions made at the hearing.  Significant weight is placed in favour of the applicant by the Tribunal in this regard.

    Nature of the household

24. The delegate was not satisfied regarding the parentage of the applicant’s daughter (Jessica) and questioned the lack of proof of parentage in circumstances where DNA testing was not conducted.  However, the Tribunal is of the view that this aspect of the relationship is no longer in question.  This is because the issue relating to the child’s parentage was dealt with by the previous Tribunal review conducted by Member Justin Meyer. 

25. The Tribunal in this case heard evidence that the child, Jessica, has been raised from birth by both the sponsor and the applicant.  The sponsor has assumed the role of father of this child.  The Tribunal heard that the applicant and sponsor both take the child [now eight (8) years old] to school each day.  The sponsor is responsible for the little girl’s evening bath, while the applicant cooks dinner.  The Tribunal heard that the child suffers from a skin condition which is treated by the sponsor, that he assists with her homework, and that they have a close relationship (where they play Mario cards together).

26. The Tribunal heard that the couple share the housework.  The applicant does the cooking for the family, and they eat together each evening.

27. The Tribunal was provided with extensive photographic evidence of the couple, with the little girl and immediate and extended family. The Tribunal in considering the nature of the household finds that the couple share the household duties, including the parenting responsibilities for their daughter.  The Tribunal is satisfied that the evidence is credible and places significant weight in favour of the applicant in this regard.

    Social aspects of the relationship

28. The Tribunal heard that the couple spend time together on weekends.  They socialise with the applicant’s family and friends, eat home cooked meals or go out together.  Also, they meet friends and other children at the Vietnamese school where their child attends on Saturdays. Their combined social activities were verified at the hearing by witnesses, namely the sponsor’s sister and the applicant’s friend, who gave evidence under oath. 

29. The couple often go to the park with their daughter and enjoy going to the Museum.  They told the Tribunal that they had recently attended the Van Gogh exhibition in Melbourne.  The Tribunal has considered the evidence, including submissions made by the applicant and the witness evidence at the hearing.  The Tribunal finds their evidence to be consistent and credible and places strong weight in favour of the applicant in this regard.

    Nature of the Person commitment to each other

30. The couple met in 2013 and were married on 22 January 2014. Their wedding was attended by sixty (60) friends and family.  The Tribunal heard from family members and friends of the couple’s love for each, and how they have supported each other during some difficult times.  Evidence submitted portrayed the sponsor as a shy, reserved man, who has become more confident and outgoing since he has been married to the applicant. The applicant and sponsor have been in a continuous relationship for nine (9) years and married for eight (8) years.   

31. The applicant told the Tribunal that she had gone to Vietnam on two occasions.  On the first occasion she took the little girl with her.  But for the second visit she left the child with the sponsor for three (3) weeks so that she would not miss school.

32. The couple have committed to the purchase of a family home together.  They are working together to build a future by working and saving.  They would also like to have more children together one day.  

33. The sponsor described their daughter as ”very smart”.  He claimed that, “she likes to sing and dance, [and that they]… play Mario cards together and [that he] … pick[s] her up from school each day”.

34. The Tribunal has considered evidence provided before and during the hearing.  Submissions support the conclusion by the Tribunal that the couple share a life together and are co- parenting their daughter in a nurturing extended family environment, which includes grandparents, an aunt, uncles and cousins.

35. The couple support for each other in their day to day lives.  They have maintained their relationship over a substantial period and share a loving relationship with each other. They have lived together for nine (9) years.  The couple have been through some uncertainty, significant distress and expense due to the circumstances surrounding the visa application. Despite this, they have maintained a loving family relationship and optimism for the future.  They have purchased their own home and continue to plan and save for the future.  The Tribunal places significant weight in favour of the applicant in this regard.

    Any other circumstances 

36. The Tribunal finds that extensive evidence has been provided to the Tribunal, addressing prior concerns which arose due to insufficient material being submitted to the Department. Various statutory declarations from family and friend substantiate the evidence provided by the applicant during the hearing regarding aspects of her relationship and life.  The Tribunal finds the weight of evidence compelling and credible.

37. The extensive evidence provided to the Tribunal in support of the application included the following:

    ·     Furniture documents

    ·     Rental documents from Sweeny Real Estate dated 5 February 2018

    ·     Living expense receipts

    ·     Childcare documents

    ·     Ballet fee documentation

    ·     Health Care card

    ·     Family photographs

    ·     Photographs of family friends

    ·     Statutory declarations from both the applicant and sponsor

    ·     A copy of their Marriage Certificate signed 22 January 2014

    ·     Joint Bank account statements

    ·     A copy of the birth certificate for the child of the relationship, Jessica Vu

    ·     School documents

    ·     Joint utility bills

    ·     Tax returns for the applicant and sponsor

    ·     Superannuation documents naming that applicant and the child as beneficiaries

    ·     Vic Road car documents

    ·     Statutory declarations from family and friends

    ·     A letter from the family GP

    ·     A letter from family day care

    ·     Witness statements from family and friends in Vietnam

    ·     Various mail items sent to the applicant and the sponsor

    ·     Miscellaneous documents for the relationship

    ·     Various receipts

38. Therefore, the Tribunal finds that the couple have a mutual commitment to shared life to the exclusion of others; a genuine and continuing relationship; and live together and not separately and apart on a permanent basis.

39. Given these findings the Tribunal is satisfied that the requirements of s 5F(2) are met at the time of this decision. Therefore, the applicant meets cl 801.221(2)(c).

40. 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 801 visa.

    decision

41. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

    ·cl 801.221(2) of Schedule 2 to the Regulations

    Donna Petrovich
    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).