Pham (Migration)

[2022] AATA 3243

Pham (Migration) [2022] AATA 3243 (15 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Thi Cam Van Pham

REPRESENTATIVE:  Mr Jack Ta (MARN: 0212473)

CASE NUMBER:  1819723

HOME AFFAIRS REFERENCE(S):          BCC2017/3339058

MEMBER:Cheryl Cartwright

DATE:15 July 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)(a) of Schedule 2 to the Regulations

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

Statement made on 15 July 2022 at 12:17pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – validly married – financial, household and social aspects of relationship and nature of commitment – extensive documentation and statutory declarations provided to tribunal – length of relationship – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2)(a)-(d), 65, 360(2)(a)
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 820.211(2)(a), 820.221(1)(a)

CASE
He v MIBP [2017] FCAFC 206

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 13 September 2017 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 because the applicant provided insufficient evidence of a genuine and continuing spousal relationship between the applicant and sponsor.

4. On 6 July 2018, the applicant applied to the Tribunal for review of the refusal decision. The applicant submitted numerous documents which evidenced the ongoing nature of the applicant’s relationship with the sponsor.

5. Upon reviewing the submissions and further evidence, the Tribunal considered that a hearing was not necessary, and the matter should be determined favourably ‘on the papers’.

6. Pursuant to s 360(2)(a) of the Act, the Tribunal considered that it should decide the review in the applicant’s favour based on the material before it.

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

   Consideration of claims and evidence

8. The issue in the present case is whether, at the time of application on 13 September 2017, the applicant and the sponsor were spouses for the purposes of the Act, and at the time of decision, whether they were still in a genuine married relationship.

   Whether the parties are in a spouse or de facto relationship

9. Clauses 820.211(2)(a) and 820.221(1)(a) respectively 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. The sponsor’s Certificate of Australian Citizenship is on the Department’s file, identifying him as an Australian citizen from 25 September 1989.

10. ‘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).

11. 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?

12. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. On 18 August 2017 the applicant and the sponsor married in Kensington, Victoria. The registered marriage certificate is on the Department’s file.

13. The Tribunal is satisfied that, on the evidence provided, the parties were, at the time of application and at the time of decision, 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?

14. Regulation 1.15A(3) provides relevant factors for determining whether the spousal relationship exists. These factors are (a) the financial aspects of the relationship; (b) the nature of the household; (c) the social aspects of the relationship; and (d) the nature of the persons’ commitment to each other.

15. In considering these issues, the Tribunal has had regard to the documents on the Department’s file and the Tribunal’s file.

16. The Tribunal notes that in this review application, the review applicant submitted written submissions including bank statements, evidence of joint purchase of a home, statutory declarations by friends and relatives, statutory declarations by the applicant and sponsor, utility bills addressed to both the applicant and sponsor, and photographs of the applicant and sponsor in social and family situations.

    The financial aspects of the relationship

17. Any joint ownership of real estate or other major assets, any joint liabilities, the extent of any pooling of financial resources, whether one person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day-to-day household expenses are relevant factors to consider when assessing the financial aspects of the relationship.

18. The applicant has provided evidence of a contract of sale, joint purchase by the applicant and the sponsor of a home at [Address], Epping, Victoria, dated 5 May 2020. They jointly share the mortgage for this property.

19. The applicant has provided evidence to the Tribunal of bank statements from 2019, 2020 and 2021 demonstrating a joint bank account with deposits of salaries and other income, as well as various payments including for household items and payments towards the house mortgage.

20. Numerous copies of utilities invoices from 2020 and 2021 addressed jointly to the applicant and sponsor at [Address], Epping, were submitted to the Tribunal.

21. The Tribunal is satisfied that the applicant and sponsor, in the years since the application, have increased their shared financial commitments. The Tribunal is satisfied that the parties share their finances and gives great weight to the evidence of the financial aspects of the relationship.

    The nature of the household

22. Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are relevant matters to be considered when assessing the nature of the household.

23. There is no evidence before the Tribunal that the applicant and the sponsor have any children together.

24. In the primary decision, the delegate found there was insufficient evidence to support the existence of a genuine and continuing relationship between the applicant and sponsor.

25. In this review further statutory declarations by friends and family claim that there are often social gatherings of friends and family in the home of the applicant and sponsor. Photographs provided offer some evidence of these gatherings.

26. Within the household, the applicant claims that she undertakes most responsibility for household duties, with the sponsor occasionally providing assistance with cooking and cleaning.

27. The applicant and sponsor claim to undertake shopping together, as well as some travel within Australia.

28. The Tribunal finds that the evidence provided is suggestive of a spousal relationship, and a continuing and genuine relationship between the parties.

    The social aspects of the relationship 

29. Whether the persons represent themselves to other people as being married to each other the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.

30. With respect to whether the persons represent themselves as being married to each other, in the primary decision, the delegate found there was insufficient evidence of recognition of the relationship by friends and family.

31. In evidence provided to the Tribunal three of the statutory declarations mention the witnesses’ knowledge that the applicant and the sponsor are married. Each individual statutory declaration describes the couple as being in an ongoing, long-term relationship.

32. In their statutory declarations, the applicant and sponsor describe how they met on a dating app in 2015 and how the relationship grew from friendship to a close personal relationship.

33. The photographs submitted to the Tribunal show the applicant and sponsor as a couple in a range of social situations with family and friends.

34. On the evidence provided, the Tribunal is satisfied that the applicant and sponsor present themselves to friends and family as a married couple in social situations.

35. The Tribunal places positive weight on the evidence of the social and public recognition of the relationship.

    The nature of the persons’ commitment to each other

36. The duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the persons draw from each other, and whether the persons see their relationship as long-term are all aspects to be considered in determining the nature of the persons’ commitment to each other.

37. Both the applicant and the sponsor have detailed the inception and development of their relationship in their respective statutory declarations dated 9 May 2022.

38. Having regard to all the evidence before it, including the statutory declarations by friends and family of the parties, the Tribunal accepts the claims about the inception and development of the relationship.

39. The Tribunal has taken account of the parties’ respective ages, backgrounds and life experiences and accepts that at both the time of application and at the time of decision, neither party was nor is in a relationship with any third party.

40. The Tribunal accepts and gives weight to the evidence that, at the time of application on 13 September 2017 the parties were married for one month and at the time of the decision they have been married for almost five years.

41. The Tribunal accepts that the applicant and the sponsor have lived together as claimed for more than five years and gives positive weight to this length of time.    

42. With respect to the degree of companionship and emotional support that the persons draw from each other and whether they see their relationship as being for the long term, the Tribunal gives great weight to the evidence in the parties’ declarations and other evidence before it.

43. In the Tribunal’s view, the evidence is suggestive of the parties being in a committed spousal relationship.

    CONCLUSION

44. The Tribunal finds that the applicant meets the time of application requirements in cl 820.211(2)(a).

45. With respect to criteria to be satisfied at the time of decision, the Tribunal finds that the applicant continues to meet the requirements of cl 820.211(2) and so meets cl 820.221(1)(a).

46. The Tribunal is satisfied that, at the time the visa application was made and at the time of this decision, the parties were and are in a spousal relationship.

47. 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

48. 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)(a) of Schedule 2 to the Regulations

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

    Cheryl Cartwright
    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).