Nguyen (Migration)

[2022] AATA 3273

Nguyen (Migration) [2022] AATA 3273 (5 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Hoang Phuong Khanh Nguyen

REPRESENTATIVE:  Mr James Tan (MARN: 9686457)

CASE NUMBER:  1818395

HOME AFFAIRS REFERENCE(S):          BCC2017/1406369

MEMBER:Justin Meyer

DATE AND TIME OF

ORAL DECISION AND REASONS:         5 August 2022 at 3:37 pm (VIC time)

DATE OF WRITTEN RECORD:                22 August 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) (Temporary) visa:

·     cl.820.211 of Schedule 2 to the Regulations

·     cl.820.221 of Schedule 2 to the Regulations,

·     r.2.03A

Statement made on 22 August 2022 at 11:12am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) (Temporary) – genuine and continuing relationship – joint investment property – knowledge of household arrangements – social recognition of the relationship – emotional support – family plans – decision under review remitted         

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.09, 1.15, 2.03

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 June 2018 to refuse to grant the visa applicant a Partner (Temporary) (Class UK) Subclass 820 visa under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 5 August 2022 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The applicant has applied for a subclass 820 partner temporary visa and made that application on 18 April 2017 on the basis of her relationship with her sponsor. 

4. On 7 June 2018 the delegate refused to grant the visa on the basis that the visa applicant did not satisfy clause 820.211.  Clause 820.211 and clause 820.221 require that at the time the visa application was made, and at the time of this decision, the visa applicant is the spouse or de facto partner of an Australian citizen or an Australian permanent resident or an eligible New Zealand citizen.  In this case the applicant claims to be the spouse of her sponsor who is an Australian citizen.  The Departmental file and records indicate that he is an Australian citizen.

5. The issue in the present case is whether the parties were in a de facto relationship at the time of the application, and whether the parties were in a spouse relationship at the time of this decision.  De facto relationship and de facto partner is defined in section 5C(b) of the Act and provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, and the couple live together or do not live separately and apart on a permanent basis, and the couple are not related by family, per section 5C(b)(ii). 

6. In forming an opinion as to whether they are in a de facto relationship consideration must be given to all the circumstances of the relationship.  This includes the evidence of the financial and social aspects and the nature of the party’s household, and a commitment to each other as set out in rule 109A(3).  A person who is claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in rule 2.03A.  This requirement is discussed later in this decision. 

7. Further, that the partner is in a spouse relationship at the time of this decision.  A 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 purpose of the Act.  There must be a mutual commitment to a shared life as husband and wife 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, per sections 5F(2)(a) to (d). 

8. In forming an opinion as to 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 rule 1.15(a)(iii).  One question is whether the parties are validly married.  If the parties are validly married, they may meet the requirements of the spousal relationship but not a de facto relationship.  The parties have submitted a marriage certificate indicating that they were married on 4 June 2022 in Melbourne.  A copy of the registered marriage certificate is on the tribunal’s file, and 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 section 5F(2)(a). 

9. The tribunal considers the rule 1.109(a)(3) and rule 1.15(a)(3) factors.  These Regulations provide relevant factors for determining whether the de fact or spousal relationship exists.  These factors are the financial aspects of the relationship: the nature of the household, the social aspects of the relationship, and the nature of the person’s commitment to each other as the factors in rule 1.109(a)(3) and rule 1.15(a)(3) are essentially the same and they will be discussed together in this decision. 

10. The tribunal has had regard to all of the documents on the Department’s file and on the tribunal’s file, and the tribunal notes that the parties submitted a limited number of documents to the Department in support of the genuineness of the relationship.  In this review application the parties have submitted a very substantial number of documents in relation to the relationship and I will list some of them.  They included written submissions, statutory declarations for the applicant and sponsor, a joint loan application for a construction of an investment property at Clyde, rental receipts from an investment property at Clyde, beneficiaries details for superannuation policies of the parties, form 888s from statutory declarants who know the parties, university qualifications, passport biodata pages, a relationship certificate which was registered by the Victorian authorities in Victoria, and a number of relationship photos, sampling photos of the parties with others, a joint tenancy agreement for a property in Wantirna, similar for a property in Mulgrave, ING bank statements for a joint bank account between the parties, and certain other utilities and household bills, and the tribunal has given regard to all of these documents.

    Financial Aspects

11. In relation to financial aspects of the relationship, the tribunal has considered that there is substantial information that the parties have combined their financial affairs and obligations.  The tribunal finds that the parties have a joint bank account which has operated for a number of years, and there is evidence of this and there is substantial transactions taking place on the account.  The tribunal finds that the parties have an investment property, the mortgage of which is in joint names and the ownership is in the name of the sponsor, and this is for taxation reasons.  The tribunal finds that the parties draw regular household expenses from the joint account.  The tribunal finds that the parties have a good knowledge of each other’s income levels, the times at which they are paid, their financial goals were stated together, and the tribunal also notes that they have purchased a property or are arranging to purchase a property which will be their matrimonial home, which they will take possession of shortly.  And the tribunal is satisfied and gives strong weight to the joint financial relationship between the parties.

    Nature of household

12. In relation to the nature of the household, the parties gave consistent evidence of them living together in Melbourne over a considerable period of years.  The tribunal finds that the parties have lived in various addresses in Melbourne, they were able to give details about those homes, and the tribunal finds that they have a very good knowledge of their household arrangements.  The tribunal finds that household duties are carried out by the parties, that they support one another in caring for their home.  The tribunal was able to identify particular tasks done by the applicant and other particular tasks that are exclusively done by the sponsor, and I find that the parties were well aware of each other’s household arrangements.  They could describe the dwelling that they lived in, they could describe how they lived for a period with the sponsor’s brother.  The tribunal notes there are former residential tenancies documents and current documents that support this conclusion, and the tribunal finds that there is strong evidence to support the household factor.

    Social Aspects

13. The tribunal is satisfied that the relationship is supported by family and friends.  Both parties gave a spontaneous account of each other’s family relationships and their connections with one another.  Family from Vietnam from the applicant have stayed with the parties.  The parties know each other’s friends and can name them.  There are brief but still factual accounts in 888 statutory declarations about the parties knowing one another.  The tribunal is not in agreement with the delegate that the 888 declarations were written in the same hand by the same people, and the tribunal finds that subsequent statutory declarations from those individuals confirm that they made those declarations under their own steam and were not given the words to say.  The tribunal finds the parties were able to identify mutual friends, they were able to identify social plans they make with one another.  They submitted a considerable number of photographs in spontaneous social situations.  And the tribunal finds that the relationship is recognised by family and friends and the tribunal places weight on the social recognition of the relationship.

    Commitment to the relationship

14. The tribunal finds that the parties have been married since June 2022.  The tribunal also found that the parties had a spontaneous account of having met one another in 2014.  The tribunal finds that the parties met one another at a social event and began dating in 2014.  They gave a consistent account of where they met one another and the commitment they made to each other to become partners in April 2014.  The tribunal finds that they began living together on 1 December 2015, and for the purposes of these Regulations the tribunal finds that the de facto relationship commenced on that date, that is more than 12 months before the visa application was made.  And the tribunal finds the parties lived together first at an investment property of a family friend of the sponsor, and that they went to a number of other locations in Victoria.  

15. And the tribunal has come to the conclusion that the parties support one another in times of stress.  They were able to discuss each other’s personalities well, they were able to discuss how they support one another when there is a need for such support, and how they could draw commitment to one another on a long-term basis.  The tribunal finds that the relationship has been in place for some eight years, and there have been no gaps or breaks in the relationship, that the relationship is exclusive, and has been exclusive throughout the period that has been claimed. 

16. The tribunal finds the parties have lived together with one another since 2015, as stated, and has not found any inconsistencies or difficulties with the evidence in relation to commitment.  The tribunal finds that the parties have lived continuously together throughout their de facto relationship and their marriage.  The tribunal finds that they support one another, having done housework for one another, accompanying one another to social events.  The tribunal finds the parties also have plans for the future, for example that they have bought their own property, that it is a property which is suited to a family, that they plan to have children in the near future, that their issues with obtaining permanent residency has held them back to some degree, and that this is their intention for the future, and they have stated these aims spontaneously and without prompting from one another.  The tribunal finds that there is a level of commitment that is commensurate with a genuine and continuing spousal relationship, and earlier with a genuine continuing de facto relationship. 

17. The tribunal has taken into account the respective ages, backgrounds, and life experiences of the parties.  The tribunal finds that they have plans, for example, to visit Vietnam, which was not possible under the current bridging visa arrangement that the applicant is under.  And the tribunal also expresses some concern about the relatively quick interview process that took place with the parties and some of the conclusions that were drawn by the delegate, and respectfully disagrees with those conclusions.  The tribunal is satisfied that the parties are in a genuine and continuing spousal relationship. 

18. So at the time of application and time of decision requirements the tribunal finds the following:  for the reasons given with respect to rule 1.109(a)(iii) the tribunal is satisfied that at the time of the application the parties were not in a married relationship for the purposes of section 5(f) with each other, that they had a mutual commitment to a shared life to the exclusion of all others as required by section 5C(b)(2)(a), had a genuine and continuing relationship as required by section 5C(b)(2)(b) and lived together as required by section 5C(b)(2)(c)(i).  Section 5C(b)(2)(d) of the Act requires that the parties not be related by family.  There is nothing in the information before the tribunal to suggest that this is the case.  The tribunal finds that section 5C(b)(2) of the Act requirements are met. 

19. The tribunal has stated earlier that it is satisfied the parties are now validly married as required by section 5(f)(2)(a) of the Act for the reasons given with respect to rule 1.15(a)(3).  The tribunal is satisfied that at the time of this decision the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others, as required by section 5(f)(2)(b) of the Act. 

20. The tribunal finds they have a genuine and continuing relationship as required by section 5(f)(2)(c) and that they live together as required by section 5(f)(2)(d)(i) of the Act.  Given these findings, the tribunal is satisfied that at the time of the visa application and that the parties were in a de facto relationship and at the time of this decision the couple is in a spousal relationship.

21. The de facto spouse requirement in clause 828.211(2)(a)(ii) is not the only requirement which must be satisfied, the sponsorship requirements must also be satisfied, and the requirement of 820.211(2)(d) must also be satisfied.  The tribunal has come to the conclusion that there are no circumstances as outlined in 820.211(2)(b) applying, and that there is no prohibition on the sponsoring partner making the sponsorship, therefore clause 820.211(2)(a)(ii) is met.

22. And the tribunal also finds that the applicant has operated at all times under relevant substantive visas in Australia, having come to Australia to study.  And the tribunal finds that the applicant continues to meet the requirements of clause 820.211(2) and meets clause 820.221(1)(a).  Accordingly, the tribunal finds that the applicant meets clause 820.211 and clause 820.221. 

23. The additional criteria for a de facto relationship, these must also be met.  The first requirement is that the couple are both at least 18 years of age.  The tribunal has reviewed the official documents and confirms the dates of birth of the parties which leads to the conclusion that they are meeting this age requirement as the date of birth of the applicant is 5 June 1991 and the date of birth of the sponsor is 2 September 1989. 

24. The requirement that the de facto relationship must have existed for 12 months prior to the visa application being lodged is also met.  The tribunal finds that it exceeds 12 months, as earlier described.  So, the additional criteria in rule 2.0(3)(a) are met. 

25. The tribunal makes a special note that given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining subclass 820 visa requirements.  Given the circumstances in which the parties are young people who have been waiting for many years of their life to obtain a partner visa and then obtain a pathway to permanent residence for the applicant, the tribunal notes that there has been considerable wastage of years as long queues have gone for the immigration and appeal process.  The tribunal finds that the applicant is a hard-working individual that has contributed skills to the Australian community, as has the sponsor.  They have plans to start a family, they have plans to live together in a home of their own, and the tribunal has come to the conclusion that the Department would be well advised to expedite this case as quickly as it possibly can to ensure the well-being of the parties.

26. Therefore, 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

27. 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) (Temporary) visa:

    ·     cl.820.211 of Schedule 2 to the Regulations

    ·     cl.820.221 of Schedule 2 to the Regulations,

    ·     r.2.03A

    Justin Meyer
    Member