Pham (Migration)

[2023] AATA 3964

Pham (Migration) [2023] AATA 3964 (12 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Thi Hop Pham
Miss Hoang Khanh Vy Nguyen

REPRESENTATIVE:  Ms Janice Vu

CASE NUMBER:  1837348

HOME AFFAIRS REFERENCE(S):          BCC2017/4758836

MEMBER:Kira Raif

DATE:12 July 2023

PLACE OF DECISION:  Sydney

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(1)(a) of Schedule 2 to the Regulations

Statement made on 12 July 2023 at 12:30pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – financial aspects – nature of the household – social aspects – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 820.211, 820.221

CASES
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 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) is a national of Vietnam, born in August 1971. She applied for the visa on 13 December 2017 on the basis of her relationship with her sponsor. The application includes the visa applicant’s child. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211 because the delegate was not satisfied the applicant was the spouse of the sponsor. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 12 July 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The applicant requested the Tribunal to take oral evidence from two other witnesses but the Tribunal decided it was not necessary to do so. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicants were represented in relation to the review. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. At the time the application was made, 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.

5. 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.

6. ‘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). 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?

7. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. the applicant provided with her application a copy of the marriage certificate showing the applicant and sponsor registered their marriage in Australia in December 2017. There is nothing to suggest the marriage is not valid. The Tribunal is satisfied on the basis of that evidence that 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?

8. The applicant and sponsor claim they were introduced to each other by a friend in December 2016 and first spoke to each other by phone on Christmas day. They then maintained contact twice a week and established a connection, deciding to make arrangements to meet in person. The applicant took a tour to Australia to visit the sponsor and a friend. They first met in person at Sydney airport on 30 August 2017 when the applicant travelled to Sydney. They decided to develop the relationship and continued to communicate with each other. The sponsor proposed to the applicant on 30 October 2017 and they married on 3 December 2017. 

9. The Tribunal  has considerable concern about the haste with which the couple arranged the marriage and the visa application. The applicant’s evidence is that she agreed to the proposal on 30 October and as the marriage took place on 3 December, it appears that the couple lodged the Notice of Intention to Marry almost immediately after the applicant accepted the sponsor’s proposal. She told the Tribunal that they engaged a migration agent to prepare the paperwork and the visa application was lodged shortly after the marriage was registered. There was also some uncertainty about when the couple approached a migration agent with the applicant claiming it was after marriage and the sponsor stating it was in October (that is, before the proposal). It is unclear to the Tribunal why the couple would wish to seek advice from a migration agent at the time of marriage (and possibly before the proposal according to the sponsor’s evidence). The Tribunal has formed the view that the couple’s decision to marry was dictated by the applicant’s visa status rather than any other consideration. It might be that the decision to marry was influenced by the applicant’s desire to obtain the Australian visa but the Tribunal acknowledges that the couple’s motivations in entering marriage do not necessarily render it non-genuine.

10. The Tribunal discussed with the applicant the concerns noted in the primary decision. The applicant explained that the letter of instructions to the payroll officer was prepared by their migration agent and, due to her lack of English, she did not know what it contained. The applicant states that her husband used a different address on his correspondence because he used his relatives’ postal address for security reasons and they did not realise they had to use the actual residential address.

11. The Tribunal generally found the couple’s evidence to be detailed and consistent. They gave credible accounts about the circumstances of their meeting and relationship development and about their living arrangements since the marriage. Their oral evidence displayed a good level of knowledge about each other’s circumstances.

12. The Tribunal has considered the financial aspects of the relationship. In a statement dated 14 December 2017, the applicant states that she is undertaking English study and looking for full-time work and that the sponsor is working full-time. The applicant also states that they have set up a joint bank account and which is used to pay for household expenses and her daughter’s school fee. The applicant provided with her application Commonwealth Bank joint statements covering the period from December 2017 to August 2018, which display transactions including cash deposits, grocery purchases and restaurant expenses. The delegate noted that no evidence of salary payments can be seen in the statements provided and the couple’s evidence to the Tribunal is that the sponsor’s income is deposited into a different account, which he held since before the marriage, and then transferred to the joint account.

13. There is additional evidence before the Tribunal. In their written statements to the Tribunal, the parties indicate that the applicant’s salary is deposited to the joint bank account and that the sponsor receives cash from his job. The sponsor deposits his earning to his personal account and then transfer money to their joint bank account. They share expenses. The parties provided bank statements of their Commonwealth Bank joint bank transaction account and joint saver account covering periods ranging from 2019 to April 2023. These show regular salary deposits, as well as various other day to day transactions. The applicant also provided three term deposit balance statements in both names showing savings. There is before the Tribunal a home loan conditional approval letter issued to both names in September 2020, Bupa health insurance membership card showing family membership, the applicant’s superannuation account showing the sponsor has been nominated as a part-beneficiary, copies of household bills, as well as evidence of joint rental payments. The parties state that they both financially support the applicant’s daughter’s education and they provided to the Tribunal copies of receipts relating to the daughter’s educational expenses.

14. Having regard to the above evidence, the Tribunal accepts that the applicant and sponsor pool their financial resources and share day to day household expenses. The Tribunal also accepts that they are willing to acquire joint ownership of assets and joint liabilities.

15. In considering the nature of the household, the Tribunal has had regard to the evidence that was submitted with the primary application and the additional evidence that is before the Tribunal.

16. There are before the Tribunal several hand-written rent receipts for the couple’s room in a shared accommodation for the Canley Heights address, as well as rent receipts and a joint tenancy agreement for a room at Canley Heights. A further joint tenancy agreement appears for a shared accommodation at Strathfield. The applicant presented various correspondence addressed to her and the sponsor at their joint addresses.

17. The delegate expressed concerns that one of the records showed an address which was crossed out by hand and a different address substituted. The applicant explained that her husband used his relative’s address as a postal address only.

18. The applicant provided to the Tribunal tenancy agreements for their current address at Cabramatta, rent receipts and rent payment lodger issued to the real estate. The Tribunal has been provided with various correspondence and cards, addressed to the parties jointly or separately over the last several years at their claimed addresses.

19. The parties state that they share the household chores and they shop for groceries some time together and some time separately. While the applicant does most of the cooking, cleaning and laundry, the sponsor does cleaning as well and he would work on house maintenance.

20. As noted above, the couple gave consistent evidence about their living arrangements. The Tribunal is satisfied they have established a joint household and share (albeit to a limited extent) the housework. The Tribunal accepts that the applicant’s daughter lives with the couple and that they both contribute to her upbringing and educational expenses.

21. In support of the social aspects of the relationship, the parties provided with the primary application a selection of social photographs, including those of the couple’s marriage certificate signing ceremony. The applicant had presented witness supporting statements from friends attesting the couple’s relationship to be genuine and continuing and additional statements are before the Tribunal. The applicant had presented evidence of joint club membership and various cards from the applicant’s family. There are before the Tribunal the sponsor’s tax return for 2018, showing he had declared the applicant as spouse. More recent tax returns have been provided to the Tribunal, including the applicant’s tax returns showing that she had identified the sponsor as the spouse.

22. The evince before the Tribunal includes a supporting statement from the applicant’s sister who states that she had stayed with the couple when she visited from Vietnam and confirms that the couple are in love and happy to be together and that the relationship is genuine and continuing.

23. The applicant presented to the Tribunal a substantial number of photographs, including of the parties themselves and with others over the recent years in various settings and on various occasions, such as having a family dinner, shopping, sightseeing and celebrating each other’s birthdays. There is also evidence of parties’ joint travel to Vietnam in August 2022, including joint flight tickets, restaurant receipt, temporary residence registration form, as well as photographs of the couple during this trip.

24. The Tribunal is satisfied the applicant and sponsor represent themselves to other people as being married to each other. The Tribunal is satisfied friends and acquaintances believe their relationship to be a genuine one. The Tribunal is satisfied they plan and undertake joint social activities as a couple.

25. The relationship has been in existence for about five and a half years. The couple have been living together since their marriage in December 2017. They spoke about their plans to save and purchase a house together. The applicant refers to the sponsor as a kind person who takes care of her and her daughter. The sponsor spoke about his desire to have a family. The Tribunal is satisfied they provide each other with companionship and emotional support. The Tribunal is satisfied they view the relationship as a long term one.

26. Having regard to all the circumstances, the Tribunal is satisfied that the applicant and sponsor have a mutual commitment to shared life to the exclusion of others. The Tribunal is satisfied their relationship is genuine and continuing. The Tribunal is satisfied they live together. 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 the time of this decision. Therefore the applicant meets cl 820.211(2)(a) and cl 820.221(1)(a).

    Conclusion

27. 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

28. 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(1)(a) of Schedule 2 to the Regulations

    Kira Raif
    Senior Member