Pham (Migration)

[2023] AATA 2646

Pham (Migration) [2023] AATA 2646 (10 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Thi Bich Diep Pham

CASE NUMBER:  1916710

HOME AFFAIRS REFERENCE(S):          BCC2018/3984092

MEMBER:David Crawshay

DATE:10 August 2023

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 of Schedule 2 to the Regulations; and

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

Statement made on 10 August 2023 at 3:53pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – pooling of financial resources – joint rental payments – shared housework – shared travel and holidays – joint social events – companionship and emotional support – decision under review remitted 

LEGISLATION

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

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 28 June 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 applicant did not satisfy cl.820.211(2)(a) because the delegate was not satisfied that she was the spouse of the sponsoring partner at the time of application.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant was the spouse of the sponsor at the time of application and whether she continues to be his spouse at the time of this decision.

   Whether the parties are in a spouse or de facto relationship

7. 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.

8. “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 r.1.15A(3).

   Are the parties validly married?

9. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal has sighted a copy of a certificate for a marriage that took place on 9 May 2018. It is satisfied that the document is genuine and that the parties were free to marry each other. 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?

10. The parties have provided the Tribunal with a number of documents since the delegate’s decision, including:

    ·statements from a joint and personal transaction accounts for periods from 2019 to 2023;

    ·various pieces of correspondence and delivery labels addressed to one or both parties at an address in Braybrook;

    ·numerous photographs of the parties during the period from 2019 to 2023, including at formal and informal social events and during various trips within Australia and overseas;

    ·Form 888 statutory declarations from friends of the parties;

    ·evidence of travel within Australia and overseas;

    ·an undated joint relationship statement, submitted on 21 April 2023;

11. This information is in addition to the not-insignificant amount of information provided at the Department stage, including photographs of the parties at their wedding ceremony in 2018 and on other occasions, existing Form 888 statutory declarations from the sponsor’s mother and friends of the parties, and an earlier relationship statement.

12. The Tribunal considers this information to be directly relevant to the four matters under r.1.15A and ultimately to the three remaining criteria under the definition of “married relationship” in s.5F(2). Much, if not all, of this information will be forwarded to the Department along with this decision.

    Financial aspects of the relationship

13. The Tribunal makes the following findings. It finds that the parties do not own any joint real estate or other major assets, nor do they have any joint liabilities. No weight is accorded to these aspects.

14. Turning to the extent of any pooling of financial resources, the parties provided an explanation in their joint relationship statement submitted on 21 April 2023 about how their finances work. According to them, their incomes (totalling around $4,000) are received into their personal accounts, and transfers are made from these accounts into a joint account out of which expenses are paid for including rental payments, and payments for groceries, utilities and entertainment. Bank statements for these personal and joint accounts largely substantiate the claims made and the Tribunal accepts that the parties operate their finances in the way claimed by them.

15. Based on this information, the Tribunal accepts that the parties pool their financial resources to a substantial extent and that they share day-to-day household expenses between them, and these aspects are given significant weight.

16. Lastly, there is no information to show that the parties owe any legal obligations in respect of the other. No weight is accorded to this aspect.

17. The Tribunal finds that the financial aspects of the relationship point towards the parties being in a genuine and continuing relationship at all material times.

    Nature of the household

18. No information has been provided to show that the parties have any joint responsibility for the care and support of any children. No weight is accorded to this aspect.

19. Turning to the parties’ living arrangements, the Tribunal has sighted a number of pieces of correspondence addressed to one or both parties at their claimed address in Braybrook for the period from 2019 until March 2023. Although it acknowledges that such correspondence can be generated by the relevant entities with little if any verification process carried out into the status of the parties’ relationship, it has considered and given weight to other information showing that the parties have been paying rent jointly and photographs of them in domestic settings. This aspect is given weight.

20. The parties gave detailed information in their relationship statement of 21 April 2023 about how they share the responsibility for housework, including taking care of their pet dog and two fish tanks. The Tribunal accepts this information and gives this aspect weight.

21. The Tribunal finds that the nature of the household indicates that the parties have been living together from around the date of their marriage up to and including at the time of this decision, and that their relationship is genuine and continuing during this period.

    Social aspects of the relationship

22. The parties submitted numerous photographs of themselves in a variety of social situations, including at birthday parties, a friend’s wedding in the USA and on other holidays to Vietnam, Thailand and Sydney. Many of these photographs are taken in the presence of others, including members of both families. The Tribunal notes that photographs of the parties wedding were provided at the Department stage, and that these showed a traditional engagement ceremony as well as a wedding reception. It accepts that many people attended these events. The Tribunal finds that the parties have represented themselves to other people as being married to each other, and this aspect is given significant weight.

23. The Tribunal has received further Form 888 statutory declarations from friends of the parties. These declarations are in addition to earlier Form 888 declarations from the sponsor’s mother, friends of the parties, and from a man with whom the applicant stayed in Australia before moving in with the sponsor and who she regards as her “father” in Australia. He can be identified in multiple photographs with the parties. The declarations, taken together, provide several cogent reasons why the authors regard the parties as being in a genuine and continuing relationship. The Tribunal accepts based on these declarations that the parties are regarded by their friends and acquaintances as being married to each other. This aspect is given substantial weight.

24. The Tribunal has considered information showing that the parties have attended social events such as the wedding of a friend in the USA in 2019. Other information such as flight itineraries and boarding passes demonstrate that they travelled to Vietnam in 2018 and recently visited Japan this year. As above, photographs have been taken of them at social occasions. Based on this information, the Tribunal accepts that the parties have planned and undertaken joint social activities, and this aspect is given weight.

25. The Tribunal accepts that the social aspects of the parties relationship overwhelmingly point to them being in a genuine and continuing relationship at all relevant times including at the time of application and at the time of this decision.

    Nature of the parties’ commitment to each other

26. The parties claim to have met each other in March 2016 near St Kilda Beach and to have begun dating two months later in May 2016. They claim that the sponsor proposed to the applicant on her 21^st birthday in December 2017. As above, the parties were married May 2018 and the application for the present visa was lodged in June 2018. The parties therefore claim that they had been in a relationship for two years at the time of application. At the time of this decision, the relationship is said to have been on-foot for seven years, five of which the parties have been married to each other and living together at the Braybrook address.

27. The Tribunal has considered the information in front of it. Although it is unable to fully substantiate that the parties had met in the manner claimed by them in 2016, it accepts at the very least that they were in a relationship at the time that they were married in May 2018. As above, it accepts that they have been living together since their marriage. These aspects are given weight.

28. Turning to the degree of companionship and emotional support that the parties draw from each other, the Tribunal has had regard to the totality of the information in the Department and Tribunal files. Specifically, it has considered the many photographs of the parties which invariably show them close to each other as well as the contents of the two relationship statements. It accepts this evidence as evidence of the parties drawing a high degree of companionship and emotional support from each other. This aspect is given substantial weight.

29. The nature of the parties’ commitment to each other indicates that they have had a mutual commitment to a shared life as a married couple to the exclusion of all others at the time of application and at the time of this decision, and that their relationship has been genuine and continuing at those times.

    CONCLUSION

30. Having taken into account the matters set out in r.1.15A(3) in relation to the definition of spouse under s.5F(2) and based on the information in front of it and the above findings, the Tribunal accepts that at the time the visa application was made the parties had a mutual commitment to a shared life together as a married couple to the exclusion of all others, their relationship was genuine and continuing and they lived together.

31. Therefore, the parties were in a married relationship for the purposes of s.5F(2) and the applicant is the spouse of the sponsor under s.5F(1) at that time. The applicant meets cl.820.211(2)(a).

32. The Tribunal is satisfied that the applicant was sponsored by the sponsor at the time of application pursuant to cl.820.211(2)(c)(i). Lastly, the Tribunal accepts that the visa application was made within 28 days after the applicant’s previous substantive visa ceased so she is not subject to the Schedule 3 criteria under cl.820.211(2)(d)(ii). Therefore, the applicant meets cl.820.211(2). Because the applicant was not the holder of a Subclass 771 (Transit) visa at the time of application, she meets cl.820.211.

33. The applicant continues to meet the requirements of being the spouse of the sponsor at the time of decision. She therefore meets cl.820.221(1). The Tribunal does not have enough information to ascertain whether any sponsorship limitations apply pursuant to cl.820.221(4)(a) and will leave this task to the Department.

34. 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

35. 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 of Schedule 2 to the Regulations; AND

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

    David Crawshay
    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).