Pham (Migration)

[2022] AATA 5235

Pham (Migration) [2022] AATA 5235 (21 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Phuong Thi Pham

REPRESENTATIVE:  Mr Suresh Wickramasinghe (MARN: 0960532)

CASE NUMBER:  1826988

HOME AFFAIRS REFERENCE(S):          BCC2016/1714808

MEMBER:Stephen Conwell

DATE:21 December 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) visa:

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

·cl.820.221 of Schedule 2 to the Regulations; and

·r.2.03A

Statement made on 21 December 2022 at 11:27am

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

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 5F, 65, 360
Migration Regulations 1994 (Cth), rr 1.09A, 1.15A, 2.03A; 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 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 12 May 2016 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) because the delegate concluded there was insufficient evidence and information to be satisfied that the applicant was the spouse or de facto partner of the sponsor within the meaning of s.5F(2) or s.5CB(2) of the Act.

4. The applicant was represented in relation to the review by her registered migration agent.

5. The applicant provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

6. The Tribunal has considered the information available to the Department, and the matters in the Department’s decision record dated 29 August 2018. The Tribunal has also considered the significant information provided to the Tribunal, which was not available to the Department at the time of its decision. The Tribunal is satisfied that based on the information available to it, the Tribunal can make a decision favourable to the applicant without proceeding to hearing, pursuant to s.360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Tribunal has before it the Department’s file relating to the applicant.  The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it including material submitted by the parties.

9. The parties have submitted extensive amounts of material to the Tribunal including, unsworn statements from the parties, sworn statements from friends and family in support of the relationship, bank statements, copies of utility bills, superannuation statements, a marriage certificate and other official correspondence.

   Background

10. Based on the documentary evidence in the Departmental and Tribunal files the Tribunal sets out the following summary of the couple’ relationship and of the applicant’s immigration history:

11. The sponsor is a 26 year-old male Australian citizen of Vietnamese descent. The applicant  arrived in Australia on 25 January 2013 holding a Student visa (TU 573). She is a 28 year-old citizen of Vietnam.

12. The parties claim to have met in April 2013, committed to a relationship and commenced a de facto relationship in 2016, and were issued a Relationship Certificate by the Registry of Births, Deaths and Marriages in Australia on 28 January 2016.

13. On 12 May 2016 the applicant  lodged a Partner (subclass 820/801) visa application. She currently holds a Bridging B (subclass WB 020)

    Whether the parties are in a spouse or de facto relationship

14. Clauses 820.211(2) 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 or de facto partner of the sponsor who is an Australian citizen.

15. The application for the partner visa which is the subject of this review was lodged on 12 May 2016 on the basis that the applicant and sponsor were in a de facto relationship. Therefore the criteria to be assessed at the time of application is whether the parties were in a de facto partner relationship within the meaning of s.5CB(2) of the Act.

16. Based on the registered marriage certificate tendered in evidence, the Tribunal is satisfied that the parties subsequently married in Victoria on 25 September 2022; therefore the criteria to be assessed at the time of decision is whether the parties are in a spousal relationship within the meaning of s.5F(2) of the Act.

    Are the parties in a spousal relationship at the date of this decision?

17. Since commencement of the review proceedings the parties have married.

18. ‘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 husband and wife to the exclusion of all others, the relationship must be genuine and continuing and the couple must live together or not separately and apart on a permanent basis: s.5F(2)(a)-(d). 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 r.1.15.

    Are the parties validly married?

19. If the parties are validly married at the date of this decision, they may meet the requirements of a spousal relationship but not a de facto relationship.  The Tribunal was provided with a copy of the parties’ Marriage Certificate issued by the Registrar of Births, Deaths and Marriages in Melbourne, Victoria.  It certifies the parties were married on 25 September 2022. The Tribunal finds that 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) at the date of this decision.

20. In reaching its decision the Tribunal has considered the mandatory factors in both r.1.09A(3) and r.1.15A(3) together.

    Are the other requirements for a de facto/spousal relationship met?

21. The Tribunal has had regard to the evidence relating to the financial aspects of the relationship including joint ownership of assets and joint liabilities, the extent of any pooling of financial resources, any legal obligations owed by the other party and any sharing of the day-to-day household expenses.

22. The parties provided financial information which reflects their financial circumstances.  This information included financial statements for a joint Commonwealth (CBA) bank account.  The account statements are addressed to both parties.  The statements cover various periods from July 2019 to June 2022. The parties indicate they use this account for household expenses, such as groceries  and other day-to-day purchases. Their respective salaries are also paid into this joint account. They advise that they have no other major financial commitments  as they live with the sponsor’s parents in their home.

23. The applicant submitted that she does not, and is not, expected to pay rent, since she has been studying and undertaking part-time work. 

24. The bank statements provided were consistent with the other financial information provided, such as the parties’ recent Australia tax returns and their respective superannuation policies, under which each party is the nominated beneficiary of the other.

25. The Tribunal has had regard to the evidence regarding the nature of the parties’ household including any joint responsibility for care and support of children; parties’ living arrangements; and any sharing of housework.

26. The parties have indicated they share a household with the sponsor’s parents since early 2016. The parties state that they both contribute to doing household chores, however the applicant in particular, assists with cooking, grocery shopping and housecleaning.

27. The parties have submitted material including income tax returns, superannuation and bank statements addressed to the applicant and/or to both parties at their Seabrook address. 

28. Sufficient documentary evidence has been provided to the Tribunal to support the parties’ contention that they have shared an address since mid-2016. The parties submit that they share domestic duties with each other and with the sponsor’s parents. They have provided written correspondence and photographs evidencing this. The parties do not have any children.

29. The Tribunal is satisfied on the evidence that the nature of the parties’ household is such that would indicate a genuine de facto relationship since early 2016.

30. The Tribunal has considered the evidence regarding the social aspects of the parties’ relationship including whether the parties represent themselves to other people as being in a de facto or spousal relationship with 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. 

31. The parties have submitted statutory declarations from friends and family attesting to the strength of their commitment to one another. The parties also submitted photographs of themselves in a variety of social settings with family and friends. The evidence indicates the parties have presented themselves as a couple to friends and family since January 2016. The parties share a common interest in computer ‘gaming’ and related activities.

32. The evidence portrays a couple who are committed to each other and recognised as being in a genuine and committed relationship by their friends, families and acquaintances.  The Tribunal is satisfied based on the supporting documentary evidence that the parties represent themselves socially in such a way as to indicate a genuine de facto partner relationship.

33. The Tribunal has also had regard to evidence pertaining to the nature of parties’ commitment to each other.  This includes the duration of the relationship; the length of time they have lived together; the degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

34. The applicant moved in with the sponsor and his parents in early 2016 and have lived under this arrangement since then, The evidence reflects the parties as a close and committed couple who have been together for over six years having registered a Relationship Certificate on 28 January 2016.  The couple have since married, the marriage certificate recording the date of marriage as being 25 September 2022.  The Tribunal accepts that  their relationship is genuine.  They clearly provide companionship and emotional support to one another and view the relationship as long-term as evidenced by the applicant’s support of the sponsor during a health issue he encountered in early 2021.  The Tribunal finds this is a clear indicator of a genuine partner relationship.

35. Based on the evidence before it the Tribunal is satisfied that at the time of the application the parties had a mutual commitment to a shared life together to the exclusion of all others, they draw emotional support and companionship from it and they view the relationship as a long term and continuing one and this continues at the time of decision.  The Tribunal also finds the parties have lived together continuously or not separately and apart on a permanent basis since early 2016.

36. The Tribunal has considered the requirements of the circumstances of the relationship as required under r.1.09A(3) for a de facto relationship at the time of application and of the same requirements of the circumstances of the relationship as required under r.1.15A(3) for a spousal relationship at the time of decision. It is satisfied that the parties had a mutual commitment to a shared relationship to the exclusion of all others, were in a genuine and continuing relationship, and have lived together, and not separately and apart, on a permanent basis.

37. Therefore the Tribunal is satisfied that the de facto partner relationship meets the requirements of s.5CB(2)(a) –(c) at the time of application. For the same reasons the Tribunal is satisfied that the spousal relationship meets the requirements of s.5F(2)(b)-(d) at the time of decision.

38. The Tribunal is satisfied that the applicant and sponsor are not related by family, and therefore meet the requirements of s.5CB(2)(d) at the time of application.

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

    Requirements to meet cl.820.211(2)

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

41. Therefore the applicant meets cl.820.211(2).

42. The Tribunal is satisfied that at the time of application the applicant was the de facto partner of the sponsor who is an Australian citizen, and therefore it is satisfied that the applicant meets the requirements of cl.820.211(2)(a).

43. The Tribunal is satisfied the applicant was sponsored at the time of application by her de facto partner who had turned 18 years of age. It is therefore satisfied that the applicant meets the requirements of cl.820.211(2)(c).

44. The evidence shows that the applicant was the holder of a substantive visa, namely a Student visa at the time of application.

45. For the above reasons I find the applicant meets the requirements of cl.820.211(2) at the time of application.

    Requirements to meet cl.820.221

46. To meet the criteria for cl.820.211(1), an applicant must continue to meet the requirements of the applicable subclause, which in this case is cl,820.211(2), or alternative requirements set out in cl.820.221(2) and (3).

47. The Tribunal is satisfied that the time of decision the applicant was the spouse of the sponsor who is an Australian citizen and continue to meet the requirements of cl.820.211(2)(a). These sponsorship requirements also continue to be met, and the requirements of cl.820.211(2)(d) continue to not apply. It is satisfied that the applicant continues to meet the requirements of cl.820.211(2) at the time of decision. Therefore the applicant meets the requirements of cl.820.221.

    Are the additional criteria for a de facto relationship met?

48. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in reg 2.03A. Both members of the couple must be at least 18 years old: reg 2.03A(2). In this case, at the time of application, the applicant and the sponsor were at least 18 years old.

49. The applicant must have been in the de facto relationship for at least the 12 month period ending immediately before the date of the application: reg 2.03A(3). This requirement will not apply in limited circumstances, such as: where the de facto relationship has been registered under a relevant State or Territory law (for applications made on or after 9 November 2009); where the applicant can establish compelling and compassionate circumstances for the grant of the visa; or in certain circumstances where the sponsor held, holds or is applying for a permanent humanitarian visa.

50. The applicant has provided evidence that the relationship is registered under the Relationships Act 2008 with the Victorian Registry of Births Deaths and Marriages. Accordingly, the 12 month requirement does not apply.

51. For both these reasons the Tribunal is satisfied that the applicant meets the criteria prescribed in reg 2.03A.

52. 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

53. 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(2) of Schedule 2 to the Regulations;

    ·cl.820.221 of Schedule 2 to the Regulations; and

    ·reg 2.03A

    Stephen Conwell
    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).