Pham (Migration)

[2022] AATA 5280

Pham (Migration) [2022] AATA 5280 (13 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Hong Thuy Pham

VISA APPLICANTS:  Ms Thi Huong Tu Pham
Miss Hoang Tu Uyen Nguyen
Mr Hoang Nhan Nguyen

CASE NUMBER:  2111614

DIBP REFERENCE(S):  OSF2015/070457

MEMBER:Kira Raif

DATE:13 July 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.

Statement made on 13 July 2022 at 3:31pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – Federal Circuit and Family Court remittal – genuine de facto relationship – financial aspects – periods of cohabitation – social activities – comfort and emotional support provided to each other – haste with which the relationship developed – additional criteria for a de facto relationship – relationship not registered – 12-month requirement – compelling and compassionate circumstances – length of the relationship – same-sex relationship – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), rr 1.09A, 2.03A; Schedule 2, cls 309.211, 309.321

CASES
He v MIBP [2017] FCAFC 206
Paduano v MIMIA [2005] FCA 211

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 Immigration on 29 August 2016 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant (the visa applicant) is a national of Vietnam, born in May 1968. She applied for the visa on 18 June 2015 on the basis of her relationship with her sponsor. The application included the visa applicant’s two children, who were minors at the time the application was made. In August 2016 the delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 and cl. 309.321 because the delegate was not satisfied the visa applicant was the de facto partner of the sponsor. The sponsor (‘the review applicant’) sought review of the delegate’s decision.

3. In June 2017 the Tribunal (differently constituted) affirmed the decision under review. The review applicant sought judicial review and the court remitted the matter to the Tribunal for reconsideration.

4. The review applicant appeared before the present Tribunal on 13 July 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. At the time the application was made, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (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.

6. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. ‘De facto partner’ is defined in s.5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2).

7. In forming an opinion whether they are in a de facto relationship, consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.09A(3). Each of the specific matters contained in r.1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

   Are the parties in a de facto relationship?

8. The parties claim to have first met in 2007. They then each married other partners and the sponsor migrated to Australia through her marriage. Their respective relationships ended in 2013 – 2014 and they met again at a party during the Vietnamese New Year in early 2014. There is confused evidence as to when they formed a relationship (this is addressed more fully below) but both agree that by December 2014 at the latest they had formed a committed relationship.

9. The Tribunal has had regard to the written material that was submitted with the initial application and to the first and present Tribunal. (The review applicant informed the Tribunal that she did not wish to provide any additional evidence following the conclusion of the hearing.) The Tribunal has also considered the oral evidence and found that the applicant and sponsor were broadly consistent in their evidence.

10. The Tribunal has considered the financial aspects of the relationship. There is evidence that  the review applicant has been regularly sending sums of money to the visa applicant and both explain that these are used for the children’s schooling and to cover the visa applicant’s living expenses, as her income was affected by Covid. The Tribunal accepts that these transfers represent the sharing of resources. The applicant and sponsor also gave consistent evidence about their financial plans, such as the sale of the visa applicant’s property in Vietnam in case of visa grant. They displayed reasonable knowledge about each other’s financial situation.

11. The Tribunal is satisfied that the visa applicant and the sponsor pool their resources and shared household expenses during the periods of their cohabitation. The Tribunal acknowledges that there may not be joint ownership of assets or liabilities or legal obligations but is mindful that these may not be available, nor necessary, in the parties’ circumstances and given their residence in different countries.

12. There is evidence of the review applicant’s frequent travel to Vietnam and she also provided to the Tribunal evidence of having registered her residence at the visa applicant’s home during these trips. The parties spoke about their activities during these periods of cohabitation, including joint travel, visiting friends and family, etc and the Tribunal accepts that during the sponsor’s trips to Vietnam, the couple had maintained a joint household.

13. The review applicant gave detailed evidence to the Tribunal about the visa applicant’s adult children and her responsibility towards providing for their education. While there is little other evidence to indicate that the review applicant had adopted parental responsibility in relation to the visa applicant’s children, the Tribunal accepts that there is some degree of sharing at least the financial responsibilities in relation to the children.

14. There is before the Tribunal ample evidence of the couple’s social activities during the sponsor’s trips to Vietnam and of the social recognition of the relationship in the form of statements from third parties and photographic evidence. The evidence is that they had undertaken join travel in and outside of Vietnam, attended social and family functions together and represented themselves to others as being in a relationship. The Tribunal accepts that they had done so. The Tribunal accepts that the relationship is known to others and that the applicant and sponsor represent themselves to others as being in a relationship. The Tribunal accepts that they had planned and undertaken joint social activities.

15. The relationship has been in existence from 2014 for a period of approximately eight years. The Tribunal acknowledges it is a lengthy period. The parties had spent limited time with each other in that period due to their residence in different countries but the review applicant had made multiple trips to Vietnam and the Tribunal is satisfied the review applicant had done the utmost to spend time with the visa applicant.

16. There is little evidence before the Tribunal about the comfort and emotional support the parties had provided to each other but the Tribunal accepts the evidence that they relied on such comfort and support following the death of the review applicant’s father and there is also evidence of support they provided to each other in the initial stages of the relationship, following the breakdown of their marriages. The Tribunal is prepared to accept that the applicant and sponsor draw emotional support and companionship from each other and view  the relationship as a long term one.

17. The Tribunal shares some of the concerns that have been expressed previously, including the haste with which this relationship developed following the breakdown of the applicant’s and sponsor’s previous marriages. The Tribunal also found some of the review applicant’s evidence problematic. For example she told the Tribunal she married her husband due to the pressure from her family and the society which was not accepting of same-sex relationships, but both the sponsor and the visa applicant also stated that all of their relatives and friends have been supportive of their relationship because they are happy together. The review applicant told the Tribunal that her mother did not know about the relationship until her father died in 2019 but the visa applicant claimed the sponsor’s parents always knew about the relationship. The Tribunal has formed the view that some aspects of the evidence had been created to suit what the parties believed the legal requirements or expectations were. In the circumstances of this case, the Tribunal has decided that these concerns are not sufficient to negate the findings made above.

18. Having regard to all the circumstances of the relationship, the Tribunal is satisfied, on balance, that at the time of the application and at the time of this decision, the visa applicant and the sponsor have a mutual commitment to shared life to the exclusion of all others. The Tribunal is satisfied their relationship is genuine and continuing. While they do not live together, the Tribunal is satisfied they do not live separately and apart on a permanent basis. There is nothing to indicate the parties are related by family. On the basis of the above the Tribunal us satisfied that the requirements of s.5CB(2) are met at the time the visa application was made and the time of this decision. Therefore, the visa applicant meets cl.309.211 and cl.309.221.

    Are the additional criteria for a de facto relationship met?

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

20. 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: r.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. The review applicant told the Tribunal she held a Partner visa and there is no evidence that she has ever held, or applied for, a humanitarian visa.

21. There is no evidence that the relationship is registered under a relevant State or Territory law. The review applicant told the Tribunal that she was granted a Partner visa. There is no evidence that the sponsor held, holds or is applying for a permanent humanitarian visa. It is necessary for the visa applicant to meet the 12 month requirement.

22. When making the application, the visa applicant stated in the application form and accompanying statement that the relationship commenced in April 2014. The Tribunal repeatedly asked the review applicant about when she believed the relationship started and she repeatedly told the Tribunal it commenced in December 2014, after they travelled together to Cambodia. The review applicant stated that upon their return to Vietnam, they  held a party to declare their relationship to others. The review applicant repeatedly, and consistently, told the Tribunal that it was in December 2014 that in her own perception the relationship started. The Tribunal explained to the review applicant the 12 months requirement and then her evidence changed and she suggested that the relationship started earlier and when she travelled to Vietnam in April 2014, she did that to be together with the visa applicant.

23. The review applicant’s later evidence contradicts her earlier claims that the de facto relationship started in December 2014 after the Cambodia trip. The review applicant suggested that she had misunderstood the questions posed to her but the Tribunal does not accept that to be the case, as the review applicant was asked about her own perceptions of the relationship and gave meaningful and consistent answers. The Tribunal has formed the view that the change in evidence was not due to any misunderstanding but due to the review applicant being reminded of the 12 months visa requirement. The Tribunal prefers the review applicant’s earlier evidence that  the relationship commenced in December 2014.

24. The visa applicant also gave confused evidence to the present Tribunal as to when their relationship started. The primary decision record indicates that in the application form she referred to April 2014 as the time the relationship commenced while in her interview with the delegate she stated it was either in January 2014, April 2014 or December 2014. In her oral evidence to the present Tribunal the visa applicant initially stated that the relationship started in December 2014 when they travelled to Cambodia. She then said that they had feelings for each other from April 2014 (and in the Tribunal’s view, ‘having feelings for each other’ may not be sufficient to establish a de facto relationship) and in December 2014 they started to live together. She also said that they lived together during the sponsor’s April 2014 visit.

25. The review applicant told the Tribunal that they started as friends in January 2014, had contact with each other and were happy together, so they fell in love. The review applicant stated that by the time she travelled to Vietnam the second time (in April), they were in love. While the Tribunal accepts that the review applicant and the visa applicant may have developed some feelings for each other earlier, and that the review applicant may have stayed with the visa applicant during the April 2014 trip, the Tribunal is not satisfied that at that time their relationship had all the indicia of a de facto relationship, including the mutual commitment, sharing of finances, representation to others, joint undertaking of social activities, care for the children, etc. The Tribunal is not satisfied these factors were present in April 2014 and finds, consistently with the review applicant’s initial evidence to the Tribunal, that the de facto relationship (as opposed to a mere friendship) commenced in December 2014 following the Cambodia trip. At that time the relationship was declared to others.  

26. As the application for the visa was made in June 2015, the Tribunal is not satisfied that the applicant had been in the de facto relationship for at least the 12 month period ending immediately before the date of the application. Therefore, the issue before the Tribunal is whether the visa applicant can establish compelling and compassionate circumstances for the grant of the visa: r.2.03A(3). The expression ‘compelling and compassionate circumstances for the grant of the visa’ is not defined in the legislation. Having regard to the ordinary meaning of the words, ‘compassionate’ suggests ‘circumstances that invoke sympathy or pity’. ‘Compelling’ in its wide, ordinary meaning means ‘forceful’ and, therefore, convincing: see Paduano v MIMIA [2005] FCA 211.

27. In referring to compelling and compassionate circumstances for the grant of the visa, both the visa applicant and the review applicant refer to the length of their relationship and state that it is a genuine one. For the reasons set out above, the Tribunal has accepted that the applicant and the sponsor had been in a genuine de facto relationship from the end of 2014. However, and having carefully considered all aspects of the relationship, the Tribunal is not satisfied that any aspects of this relationship, or that all aspects of the relationship when taken together, constitute compelling and compassionate circumstances. The relaotionship between the applicant and sponsor has the ‘usual’ or common indicia of a de facto relationship and in the Tribunal’s view, that is neither compelling nor compassionate. Neither is the Tribunal satisfied that, in the circumstances of this case, the long-term nature of the relationship is a compassionate and compelling circumstance for visa grant.

28. The review applicant referred to the lack of acceptance in the society of the same-sex relationships and the pressure that her family and friends placed on her to enter marriage. However, the parties’ evidence also is that all family members are supportive of the relationship and their friends and acquaintances know about the relationship and both the visa applicant and the sponsor referred to having a party around December 2014 to inform others about the relationship. That indicates that despite the claimed disapproval of same-sex relationships in Vietnam, the applicant and the sponsor have been able to initiate and maintain their relationship over a number of years and had openly engaged in that relationship and declared it to others. In these circumstances, the Tribunal does not consider that any claimed societal discrimination or perceptions about same-sex relationships constitute compelling and compassionate circumstances for the grant of the visa.

29. The parties have not raised any other circumstances for the waiver. Having considered all of the circumstances singularly and cumulatively, the Tribunal is not satisfied that there are compelling and compassionate circumstances for the grant of the visa. It follows that  the Tribunal is not satisfied that the visa applicant meets the additional criteria prescribed in r.2.03A and the secondary applicants do not meet the secondary criteria for visa grant.

    Conclusion

30. For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.

    DECISION

31. The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.

    Kira Raif
    Senior Member