Pham (Migration) - [2025] ARTA 912

Pham (Migration) [2025] ARTA 912 (23 May 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Thu Yen Pham
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2112986

Tribunal:Senior Member M Ison
Place:Melbourne
Date: 23 May 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration in accordance with the order that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211(2) of Schedule 2 to the Regulations; and
·cl 820.221(3) of Schedule 2 to the Regulations.

Statement made on 23 May 2025 at 3:31pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine relationship when application made – valid civil ceremony then ‘celebration/function’ with family and friends some months later – date of start of cohabitation and addresses lived at – errors and inconsistencies in applications, statements and utilities accounts – adverse information – allegations of other relationships and contrived marriage – lie detector test supportive but not conclusive – court declaration of parentage of child – relationship ceased and claim of family violence – physical and non-physical abuse – interim intervention order made without sponsor having opportunity to be heard – statutory declaration and statements from specified persons – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), 5F(2), 65, 359A, 376
Family Law Act 1975 (Cth), s 69VA
Administrative Review Tribunal Act 2024 (Cth), s 106(3)
Migration Regulations 1994 (Cth), rr 1.03, 1.15A(3), 1.22, 1.23(4), (5), (12), 1.24(b), 1.25(2), Schedule 2, cls 820.211(1), (2)(a), 820.221(1)(b), (3)(a)(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 an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister on 6 September 2021 to refuse to grant Ms Thu Yen Pham a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Ms Pham applied to the Administrative Appeals Tribunal (AAT) on 25 September 2021 to review the delegate’s decision.
The AAT was abolished, effective on 13 October 2024, by the repeal of the Administrative Appeals Tribunal Act 1975 (Cth) by the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (Transitional Act). On 14 October 2024 the Administrative Review Tribunal (the Tribunal) was established by the Administrative Review Tribunal Act 2024 (Cth) (ART Act).
Under the transitional provisions in the Transitional Act, applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pham (Migration)

Details

AGLC: Pham (Migration) [2025] ARTA 912
Case: [2025] ARTA 912
Decision Date: 23 May 2025

CaseChat Overview and Summary

Pham (Migration) involved a review of a decision to refuse the grant of a Partner (Temporary) (Class UK) visa, subclass 820, to the applicant, Ms Pham, a Vietnamese national. The dispute centered on the validity of Ms Pham’s marriage to the sponsor, Mr Minh Huy Luong, an Australian citizen, and her eligibility for the visa. The matter was heard by the Administrative Appeals Tribunal (AAT) under the transitional provisions in the Migration Legislation Amendment (Review of Decisions by the Tribunal) Act 2024.

The court was required to decide whether Ms Pham was in a genuine married relationship with Mr Luong at the time she applied for the visa, and if not, whether she was eligible for the visa based on other grounds such as family violence. The key issues included the authenticity of the marriage, the date of commencement of cohabitation, and whether Ms Pham experienced family violence during the relationship, which could have made her eligible for the visa despite the marriage being found not genuine.

The court found that the marriage between Ms Pham and Mr Luong was not genuine, as there were inconsistencies and errors in their applications, statements, and utility accounts. However, the court also found that Ms Pham had experienced family violence from Mr Luong, as evidenced by an interim intervention order made without Mr Luong having the opportunity to be heard. This order, along with statutory declarations and statements from specified persons, supported Ms Pham’s claims of family violence. Consequently, the court concluded that the decision to refuse the visa should be set aside and the matter remitted for reconsideration under the correct legal framework.

The final orders were to remit the decision under review to the delegate for reconsideration in light of the Tribunal’s findings, particularly regarding the claims of family violence and the eligibility criteria under the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant’s response was provided to the Tribunal on 26 March 2025 and attached a number of documents. The Tribunal was not satisfied the applicant’s response enabled the Tribunal to adequately determine the issues in the review in the absence of the applicant. For this reason, the Tribunal hearing on 2 April 2025 proceeded as scheduled.CONSIDERATION OF CLAIMS AND EVIDENCE In the present case, the applicant acknowledges her relationship with the sponsor has ceased and claims she has experienced relevant family violence perpetrated by the sponsor during her married relationship with him. At the time of the primary decision, the delegate only considered whether the applicant was in a genuine married relationship. The delegate did not proceed to assess the applicant’s claims of experiencing relevant family violence because the delegate found the applicant was not in a married relationship, as that term is defined in s 5F of the Act, with the sponsor. Clauses 820.211 (time of application) and 820.221 (time of decision) of Schedule 2 to the Regulations provide:820.211(1) The applicant: (a) … (b) meets the requirements of subclause (2), (5), (6), (7), (8) or (9).(2) An applicant meets the requirements of this subclause if:(a) the applicant is the spouse or de facto partner of a person who:(i)is an Australian citizen, an Australian permanent resident or eligible New Zealand citizen…820.221(1)In the case of an applicant referred to in subclause 820.211(2), (5), (6), (7), (8) or (9), the applicant either: (a) continues to meet the requirements of the applicable subclause; or (b) meets the requirements of subclause (2) or (3).…(3) An applicant meets the requirements of this subclause if:(a) the applicant would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and(b) either or both of the following circumstances applies:(i) either or both of the following:(A) the applicant;(B) a dependent child of the sponsoring partner or of the applicant or of both of them;has suffered family violence committed by the sponsoring partner; … Regulation 1.23 sets out when a person is taken to have experienced family violence and when a person is taken to have perpetrated family violence against the first person. Regulations 1.23(2), (3), (4), (5), (6) and (7) relate to circumstances where there has been a judicial determination of family violence through the granting of an injunction, a protection order or a criminal conviction has been recorded. The applicant provided the Tribunal with a copy of a Family Violence Interim Intervention Order (FVIIO) issued by the Magistrates’ Court of Victoria at Sunshine on 22 May 2020. The FVIIO names the sponsor as the respondent and the applicant as the protected person. The FVIIO notes the applicant was not served with a copy of the application and summons for the FVIIO, was not at court and did not agree to the Order being made. In short, the Order was made without the sponsor being afforded the opportunity to respond to the allegations made against him.

Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision to refuse the applicant’s visa application should be set aside.The primary decision The applicant provided the Tribunal with a copy of the primary decision. The applicant applied for the visa on 19 June 2017 on the basis of her relationship with the 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 Regulations. The applicant must satisfy the primary criteria for the grant of the visa. There are no secondary applicants in this review. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211 because the delegate found that the applicant was not the spouse, as that term is defined in s 5F of the Act, of the sponsor at the time of application for the visa. Put another way, the delegate found that the applicant’s marriage to the sponsor was not genuine.Tribunal hearing On 27 May 2024 the Tribunal invited the applicant to appear before it on 24 August 2024 when this review was constituted to a different member. This hearing was cancelled by that member. The Tribunal as presently constituted invited the applicant to appear before it on 7 October 2024. This hearing was cancelled by the Tribunal following the Department providing additional documents to the Tribunal in relation to this review and issuing a third non-disclosure certificate under s 376 of the Act, details of which are set out in paragraphs 28 to 31 of these reasons for decision. The applicant appeared before the Tribunal in-person on 2 April 2025 to present her case including by giving evidence and making submissions. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review by Ms Daniela Stojanovic of Stojanovic & Associates, who also attended the Tribunal hearing in person. Ms Stojanovic is a registered migration agent. Ms Stojanovic provided a series of pre-hearing submissions that were of assistance to the Tribunal in the conduct of this review. Ms Stojanovic is referred to as the representative in these reasons for decision.Procedural matters Non-disclosure certificates issued under s 376 of the Act The Department file provided to the Tribunal included three certificates issued under s 376 of the Act. The first certificate dated 12 October 2021 was unsigned and the Tribunal does not consider it to have been validly issued or the Tribunal to be bound by it. Further valid s 376 certificates were issued on 28 May 2024 and 30 August 2024. On 18 September 2024 the Tribunal wrote the applicant about the three non-disclosure certificates, including providing copies of each certificate, explaining the Tribunal’s preliminary view of their validity or invalidity, explaining the documents in the Department file each certificate applies to and the reasons given for each certificate being issued and inviting the applicant to comment on the two valid certificates.

Ratio Decidendi

Legal Principle Established

Under the transitional provisions in the Transitional Act, applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.Applicant’s migration history in Australia Ms Pham is the visa applicant in this review. Ms Pham is a 33-year-old national of Vietnam. Ms Pham is referred to as the applicant in these reasons for decision. On 19 July 2013 the applicant first arrived in Australia as the holder of a Student (Subclass 573) visa. The applicant’s Student visa had conditions 8105 (work limitation), 8202 (maintain enrolment), 8501 (maintain health insurance), 8516 (continue to satisfy the primary criteria for the visa), 8517 (educate children) and 8533 (address when arrive in Australia) attached from Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations). On 20 December 2015 the applicant met Mr Minh Huy Luong, who was then 25 years old. Mr Luong was born in Vietnam and at the time of meeting the applicant was an Australian permanent resident. Mr Luong was granted Australian citizenship on 6 July 2023. On 13 January 2016 the applicant’s Student visa was cancelled for breaching condition 8516 (continue to satisfy the primary criteria for the grant of the visa) by failing to maintain enrolment in a registered course. On 25 January 2016 the applicant was granted a Bridging E (Subclass 050) visa which had conditions 8101 (no work), 8201 (study and training limitation) and 8506 (change of address) attached from Schedule 8 to the Regulations. The applicant applied to the AAT to review the decision to cancel her Student visa. On 4 October 2016 the AAT, differently constituted, set aside the cancellation of the applicant’s Student visa. On 16 January 2017 the applicant and Mr Luong were married in a marriage the Tribunal accepts as lawful for migration purposes. On 3 June 2017 the applicant and Mr Luong celebrated their marriage with family and friends in Australia. On 19 June 2017 the applicant applied for the Partner visa that is the subject of this review. Mr Luong sponsored the applicant’s application for the Partner visa and is referred to in the balance of these reasons for decision as the sponsor. In the Partner visa application, the applicant did not declare any previous relationships but declared that the sponsor had been married once previously, to Ms Hanh My Hong from 4 June 2009 to 22 June 2015. This information was supported by a certified copy of a Federal Circuit Court of Australia (as it then was) divorce order made on 21 May 2015 terminating the marriage on 22 June 2015. The sponsor’s marriage to Ms Hong did not produce any children. On 20 June 2017 the applicant was granted a Bridging A (Subclass 010) visa associated with her Partner visa application. The applicant’s Bridging A visa did not have any conditions attached from Schedule 8 to the Regulations.