Nguyen (Migration)

[2022] AATA 1938

Nguyen (Migration) [2022] AATA 1938 (7 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Thi Bich Hong Nguyen
Miss Nhat Anh Nguyen
Mr Duc Tuan Anh Nguyen

REPRESENTATIVE:  Mr Michael Cai (MARN: 1799864)

CASE NUMBER:  1922945

HOME AFFAIRS REFERENCE(S):          BCC2018/1439854

MEMBER:Meredith Jackson

DATE:7 June 2022

PLACE OF DECISION:  Brisbane

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

·cl 820.211(2)(a) of Schedule 2 to the Regulations

·cl 820.221 of Schedule 2 to the Regulations

Second-named and third-named applicants to be reconsidered on the basis of the remit of the primary applicant.

Statement made on 07 June 2022 at 10:44am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – health issues of the sponsor – pooling of financial resources – joint responsibility for the children and with housework – evidence of joint social activities – mutual emotional support – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 5, 65, 360
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.15

CASES

Ally v MIAC [2008] FCAFC 49
Bretag v IRT [1991] FCA 582
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700

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 applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant (the applicant) applied for the visa on 28 March 2018 on the basis of 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). 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 visa applicant did not satisfy cl 820.211(2)(a) because the delegate was not satisfied that the evidence provided demonstrated that the applicant was the spouse or de facto partner of the sponsor as defined under section 5F and 5CB of the Act.

4.    The applicants were represented in relation to the review.

BACKGROUND

5.    The first-named applicant in the present matter is Thi Bich Hong Nguyen, born in 1979 and a citizen of Vietnam. The second-named applicant is Nhat Anh Nguyen, born in Vietnam in 2002, and the third-named applicant is Duc Tuan Anh Nguyen, born in Vietnam in 2006. The children were born to Ms Nguyen and her late husband. The sponsor is Chenh Bac Lam, born in Vietnam in 1965 and an Australian citizen by grant.  The applicant and sponsor claim to have met on 15 December 2013 in a restaurant where they both worked at that time. Ms Nguyen was in Australia in 2013 on a Student visa, studying a Master of Hospitality at James Cook University and accompanied by her husband. She declared in her visa application that her husband died on 9 February 2017 and provided a death certificate. Mr Lam, she states, had become a friend of the family before her husband’s death. Ms Nguyen’s claims that after her husband’s death, Mr Lam supported her and her children through their bereavement. The parties claim they grew closer and they married on 14 February 2018. Medical information provided by the applicant on review indicates that the sponsor has since experienced significant health issues and that he underwent a renal transplant on 26 October 2020. The applicant has provided evidence that he has had several inpatient procedures since that time.

6.    On 3 May 2022 the Tribunal invited the applicant to a hearing on 18 May 2022 to give evidence in support of his case. On 3 May 2022 the applicant requested a postponement, which was granted. On 16 May 2022 the representative requested a decision be made on the evidence provided, without the need for a hearing. The Tribunal considered the request and advised the representative that the hearing would proceed. On 31 May 2022 the representative provided a significant bundle of submissions in support of the applicant’s case. The delegate refused the visa because there was insufficient evidence provided concerning a spousal relationship. On review, the Tribunal is satisfied this is a matter where the visa applicant submitted limited documentary evidence in support of the visa application to the Department of Immigration, and, by 31 May 2022, more extensive evidence that was unavailable to the primary decision maker was provided. It is evident at the time of making this decision, that time and events including the health issues of the sponsor tend to support the applicant’s claims to a genuine relationship[1]. Accordingly, the Tribunal did not consider a hearing to be necessary in this matter; it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

1.    [1] [1] Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139 at [24] per Deane J which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time; and see also Bretag v IRT [1991] FCA 582 at [13]–[15].

7.    On 6 June 2022 the Tribunal advised the applicant that a decision in the matter would proceed on the information before the Tribunal.

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

ISSUES AND LAW

9.    On 31 May 2022, the Tribunal received documentary submissions from the applicant in support of her case, including identity documents, financial and taxation returns, death certificate for her late husband, health records for the sponsor, the parties’ marriage certificate, photographs; documents pursuant to the financial, household and social aspects of the relationship. The Tribunal has considered the information on Tribunal and Department files, including the earlier statements provided from third parties and identity and identity and police checks provided with the application. All material has been duly considered by the Tribunal.

1. The issue in the present case is whether the applicant at the time of application and at the time of this decision, is the spouse or de facto partner of the sponsor as defined.

Whether the parties are in a spouse or de facto relationship

1. Clauses.820.211(2)(a) and 820.221 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.

2. ‘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 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?

1. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant provided to the department a copy of a Marriage Certificate for the parties for a marriage solemnised in the General Registry Office of Queensland on 14 February 2018. 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 – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

1. The applicant provided on 16 May 2022, ANZ bank statements for the parties from 5 August 2019 to 5 April 2022; consecutive residential tenancy agreements in Miller Street and Ryan Street in the suburb of West End, in Brisbane, in joint names covering periods from 15 January 2021 to 22 January 2023; tax returns from 1 July 2018 to 30 June 2021 naming the other at the same address and providing the same EFT details and each other’s spousal names respectively; utility accounts in Ms Nguyen’s name at the Miller Street address and utility bills in joint names for the period at the Ryan Street address from December 2021. Phone bills reflect Ms Nguyen’s name or joint names from 24 December 2018 to March 2022. The Tribunal has examined the documents and is satisfied that the applicants shared residential addresses between November 2021 to the present time, with a lease continuing currently. The applicant also provided on 31 May 2022 evidence of Allianz car insurance in the sponsor’s name for the current year; and evidence of Coles car insurance in the applicant’s name from February 2019 to the current year. The cars are registered in joint names at the two addresses above. There is no evidence before the Tribunal that the parties jointly own assets other than the cars that are registered in joint names. Joint liabilities arise in relation to residential services and insurances but legal obligations are confined in evidence to those of joint responsibility for the payment of living expenses such as rent. The Tribunal is satisfied that pooling of financial resources is apparent in the joint accounts. The applicant submits that the account is used for that purpose but is not the sole account they each hold, and that the applicants contribute varying individual resources to the living costs jointly incurred. The Tribunal accepts that the joint account is used in a substantial manner and reflects day-to-day expense sharing in a standard spousal relationship.

Nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

1. The applicant has two children who at the time of the application were aged 16 and 12 years respectively and are now 19 and 16 years of age. The applicant claims the care of those young persons falls to them jointly as do the daily household responsibilities. The Tribunal is satisfied, based on these circumstances and the supporting information provided, primarily in relation to the financial aspects, that the parties have joint responsibility for the children and conduct housework and other chores consistent with a shared household with live-in teenage children.

Social aspects of the relationship – including whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

1. The applicant provided photographic evidence of shared occasions with others. There are no notes attached to explain the photographs, but they depict the parties in the company of a group of persons and in close contact with one another. The applicant argues through her representative that the parties have presented both to authorities and their families as a married couple. Form 888 declarations were provided with the visa application. One is from Dat The Ha of Oxley, who claims to have known the applicant for 11 years and the sponsor for long enough to have enjoyed social events over meals at his home. He states his view of the relationship as one of genuine and continuing nature and wishes the two parties every success. Witness Anh Tuan Hong provides a Form 888 declaration stating she met the applicant in 2015 when she worked with both the parties. She claims to have known the sponsor for over 5 years and watched their relationship develop. She described the relationship as compassionate and close and that the parties had “a happy wedding” on 14 January 2018. The delegate’s decision indicates that the declarants did not provide citizenship or residency documentation with their Form 888s. In the light of other information and the content of the statements, the Tribunal is inclined to accept the declarants’ statements as genuine insofar as they support that the parties presented themselves as a couple and had a circle of friends from their work at the restaurant. The Tribunal accepts that the sponsor’s health conditions, described below, may be a brake on social activities.

Nature of persons' commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

1. Each of the parties states that at the time they met in 2013 at work, they were both married. A death certificate provided certifies that the applicant lost her former spouse, Nguyen Duc Toan on 9 February 2017. The sponsor she claims was a friend of the Nguyen family at the time, and a colleague of the applicant. The applicant in submissions claims that after their father died the sponsor became a father figure to her children and supported her through her “darkest hour”. The applicant provided evidence that Mr Lam suffered health issues from 2017 had a kidney transplant in 2020 (which appears incorrectly as a liver transplant in the representative’s submission of May 2022) and was scheduled between 2020 and 2021 for further surgical procedures. He is receiving Centrelink income.

2. The relationship between the parties is described in submissions as of mutual support. The sponsor it is claimed supported the applicant and her children through the loss of her husband and the children’s father; and the applicant supports the sponsor through his health issues. The circumstances suggest that the relationship may have elements of arrangement for mutual support, and notes it was forged relatively soon after the loss of Mr Nguyen. However it remains that the parties, who have known each other for almost a decade, have been married since early 2018, now a period of more than four years. The delegate’s decision raised doubts about the evidence that the parties lived together throughout the relevant period. The Tribunal is less troubled having examined the additional evidence and considers that events after the decision tend to suggest that for better or worse, the relationship has survived. It is reasonable to draw that a degree of companionship and emotional support features in it and that the parties see the relationship as long term, as they claim to do. There is no evidence before the Tribunal that the relationship is not mutually exclusive.

Any other circumstances of the relationship

Information covered by a certificate under section 376 of the Act

1. A certificate and notification regarding the Tribunal’s discretion to disclose certain information under s376 of the Act appears on departmental file number BCC2018/1439854. It certifies that disclosure of this material would be contrary to the public interest because it was provided in confidence. Prior to the hearing, the Tribunal provided a copy of the certificate to the applicant. She responded through her representative, stating that the certificate was valid. The Tribunal has considered the certificate and finds it is a valid certificate, in that it is signed and a public interest reason is cited. The Tribunal has considered the information covered by the certificate and finds it conflicts with information before the Tribunal. For that reason, the Tribunal places no weight upon the information in this decision.

2. The Tribunal has carefully considered the information provided with the visa application, the reasons for the delegate’s refusal to grant the visa, and the information provided and prevailing circumstances before and since the visa was refused. It is evident that the parties have shared difficult times, and continue to cohabit and share their emotional and physical resources. There is no evidence before the Tribunal that the parties have engaged other relationships while married to one another. The Tribunal is satisfied that the evidence supports a relationship that is based on a mutual commitment to shared life to the exclusion of others; is a genuine and continuing relationship; and that the parties live together and not separately and apart on a permanent basis.

3. On the basis of the above the Tribunal is satisfied that the requirements of s 5F(2) are met at the time the visa application was made and at the time of this decision.

4. There is no evidence before the Tribunal that Chenh Bac Lam is prohibited from being a sponsor and the Tribunal finds that Ms Nguyen is sponsored as required and that she held a substantive visa at the time of the visa application. There is no evidence before the Tribunal that the parties are related by family.

5. The Tribunal finds the applicant meets cl 820.211(2)(a) and cl 820.221(1)(a) and continues to meet the criteria at the time of this decision.  Therefore cl.820.221(1) and cl 820.221 are met.

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

Secondary applicants

1. The second-named applicant Nhat Anh Nguyen and third-named applicant Duc Tuan Anh Nguyen are to be reconsidered on the basis of the remit of the primary applicant.

DECISION

1. The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:

   ·cl 820.211(2)(a) of Schedule 2 to the Regulations

   ·cl 820.221 of Schedule 2 to the Regulations

   Second-named and third-named applicants to be reconsidered on the basis of the remit of the primary applicant

Meredith Jackson
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).

1. 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.

1. 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).