Pham (Migration)

[2018] AATA 3667

Pham (Migration) [2018] AATA 3667 (6 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Thi Ly Pham

CASE NUMBER:  1702279

DIBP REFERENCE(S):  BCC2015/975490

MEMBER:Helena Claringbold

DATE:6 August 2018

PLACE OF DECISION:  Sydney

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 (Temporary)) visa:

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

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

Statement made on 06 August 2018 at 7:22am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Spouse of the sponsor – Sponsor’s incarceration – Applicant’s financial support – Care for sponsor’s children – Resided in sponsor’s mother’s home – Relationship challenged by drug addiction – Translation documents – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 5F,
Migration Regulation 1994 (Cth), r 1.15A, Schedule 2 cls 820.211, 820.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 28 March 2015, Ms Thi Ly Pham, the applicant, applied for a Partner (Temporary) (Class UK) visa.  The application was made on the basis of her spousal relationship with Mr Van Tung Tran, the sponsor.

2. On 27 January 2017, a delegate of the Minister for Immigration and Border protection refused to grant the visa. The refusal was based on the applicant not satisfying cl.820.211(2)(a) and cl.820.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). The delegate was not satisfied that the applicant is the spouse of the sponsor.  This is a review of the delegate’s decision.

3. On 5 June 2018, the applicant appeared before the Tribunal to give evidence and present arguments. She provided the Tribunal with a copy of the delegate’s decision record. The Tribunal also received oral evidence from Mr Tran. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration all the evidence in the Department of Immigration and Border Protection’s case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

6. The issue in this matter is whether the applicant is the spouse of the sponsor as defined in s.5F of the Act.

   BACKGROUND ON THE EVIDENCE

7. The applicant was born in 1990 in Quang Binh, Vietnam. Her parents and four siblings live in Vietnam. She has not declared any previous relationships.

8. The sponsor was born in 1992, in Vietnam. His mother and one sibling live in Australia. His father lives in the USA. On 12 August 2009, he entered Australia. He is an Australian citizen. He has not declared any previous relationships.

9. On 25 March 2014, the parties met. On 24 March 2015, the parties married. On 28 March 2015, the partner visa application was lodged. On 8 May 2018, the sponsor was arrested and is currently incarcerated.

   Is the applicant the spouse of an eligible resident?

10. The Tribunal is satisfied that the sponsor, at the time of visa application and at the time of decision, was and is an Australian permanent resident.

    Are the parties validly married?

11. At the time the visa application was made, the applicant provided evidence of her marriage to the sponsor. 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 parties in a spousal relationship?

12. ‘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 live 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 of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the applicant’s and sponsor’s household and their commitment to each other as set out in r.1.15A(3) of the Regulations, which is extracted in the attachment to this decision.

    CLAIMS AND FINDINGS

13. On these aspects the Tribunal has considered the evidence before it and is satisfied the facts of this case are as follows.

14. About the parties’ financial matters, the parties no not have any joint ownership of assets or joint liabilities and do not have any legal financial obligations owed to the other party. The sponsor has a debt of approximately $6,000 associated with previous court matters. The parties’ income is currently derived from the applicant’s salary.  Previously, when the sponsor was working he also contributed to the parties’ income. The parties provided intermittent statements from 2016 to 2018 for their joint bank account. The sponsor told the Tribunal he has not put any money into the joint account since July 2017, because he has not had any money. The bank statements show that shortly after the sponsor’s arrest, money was transferred from the parties’ personal accounts into the joint account. The Tribunal was told that this was to support a bail application for the sponsor. Other records show, that after the sponsor’s arrest the applicant deposited money in to the sponsor’s prison account. Other information about the parties’ circumstances is that the applicant assists supporting the sponsor’s two children, who live with their grandmother. The Tribunal accepts that the parties shared day-to-day household expenses.  It accepts that, the applicant is supporting the sponsor financially during his imprisonment.

15. In their household, the parties do not have any joint responsibility for care and support of children. The evidence before the Tribunal is that the sponsor’s children are under the custody of the sponsor’s mother.  However, other information is that the applicant has become fond of the sponsor’s children and provides them with regular support. When the visa application was made, the parties lived with the sponsor’s mother in her home and they all shared household duties. The parties then moved to their Andrews Ave, address and then to their Mc Burney Road, address. Bond and lease documents have been provided for both of these addresses. The Tribunal accepts that the parties, prior to the sponsor being incarcerated had formed their household. 

16. Socially, the parties enjoyed going to friend’s homes and going bowling together. At the time of application, the sponsor’s mother stated that she had known the applicant for ten months and the parties visit her each week.  She stated that she supported her son being married to the review applicant and offered for the parties to live with her.  Another author had known the applicant for nine months said the parties’ relationship developed and he supports the visa application. More recent statements give insight into the sponsor’s drug addiction and of the stress and anxiety this caused the applicant. Another writer describes meeting with the parties for barbeques or visiting them at their home. Photographic evidence depicts the parties at what appears to be their wedding day together and with others.  Other images depict the parties together and with others at different locations. The Tribunal accepts that the parties have undertaken social activities together. It accepts that the parties represent themselves to others as being married to each other.

17. Concerning the parties’ commitment, the parties married on 24 March 2015 and have lived together since that time.  The parties’ relationship has been challenged by the sponsor’s drug addiction. The information before the Tribunal is that the applicant continues to support the sponsor during his incarceration both financially and emotionally and is in regular contact. The sponsor’s mother in her statement describes how she and the sponsor are trying to have the sponsor rehabilitated. The parties told the Tribunal that when the sponsor is released from prison they will rebuild their lives and hope to travel and have a family.

18. The Tribunal has carefully considered a number of aspects of the sponsor’s oral evidence which concerned the Tribunal because it was inconsistent with the applicant’s oral evidence, or caused the Tribunal to question (more broadly) the reliability of the applicant’s oral evidence. Specifically, on one occasion the sponsor provided vague information about where the parties had lived. The Tribunal put this question to the sponsor in various forms, but the sponsor seemed unable or incapable of providing a cogent response or indeed any consistent response. This contrasted with the applicant’s information which was succinct, spontaneous and was also supported with independent information and is therefore reliable. On another occasion the sponsor provided a different account of the circumstances surrounding his arrest, to that of the applicant’s.  On the other hand, in a post hearing submission the applicant stated that this was mainly because of the sponsor’s, at times, erratic behaviour. Although the Tribunal has concerns about these inconsistencies, it has weighted them against the other evidence of the case and has determined that the inconsistencies are not fatal to the application under review.

    Other considerations

19. The sponsor’s migration agent challenges many aspects of the interpreting during the Tribunal hearing.  He claims that although the transcript recorded the sponsor’s responses to questions given through the interpreter, that the sponsor did not provide various responses.  To substantiate this claim, he provided a typewritten document drawing the Tribunal’s attention to various parts of the Tribunal hearing. The translation is not an official certified translation from the National Accreditation Authority for Translators and Interpreters accredited translator.  Nor, is it, a translation provided by a non-accredited translator outside of Australia which has been endorsed by the translator with their full name, address, telephone number and details of their qualifications and experience in the language being translated.

20. The applicant’s migration agent provided the Tribunal with an, in part, transcript of the Tribunal hearing of 5 June 2018. Unfortunately the English translation has not been certified by a National Accreditation Authority for Translators and Interpreters accredited translator. Neither has the translation been endorsed by a translator with their full name, address, telephone number and details of their qualifications and experience in the language being translated.

21. Therefore, the Tribunal cannot weigh the veracity of the applicant’s migration agent’s claims, because it has not been provided independent evidence of what was said at the Tribunal hearing, other than that provided by the applicant’s migration agent, as discussed above.

22. Overall, the Tribunal is satisfied that the applicant and the sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others; that their relationship is genuine and continuing and that they do not live separately and apart on a permanent basis. The applicant therefore meets the requirements of s.5F of the Act. Given these findings, the Tribunal is satisfied that the parties are in a spousal relationship.

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

24. Therefore the applicant meets cl.820.211(2)(a) and cl.820.221(1)(a) of Schedule 2 to the Regulations.

25. 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

26. 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 (Temporary)) visa:

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

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

    Helena Claringbold
    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).