Pham (Migration) - [2024] ARTA 107

Pham (Migration) [2024] ARTA 107 (14 November 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Thi Thanh Ngon Pham
Visa Applicants:  Mr Ngoc Hai Ha
Miss Do Quynh Nhu Ha
Respondent:  Minister for Home Affairs
Tribunal Number:  1923572

Tribunal:General Member D. Barker
Place:Sydney
Date: 14 November 2024
Decision:The Tribunal sets aside the decision under review and remits the applications for a Partner (Provisional) (Class UF) visa for reconsideration, in accordance with the order that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl 309.211 of Schedule 2 to the Regulations
·cl 309.221 of Schedule 2 to the Regulations

Statement made on 14 November 2024 at 4:51pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – joint social activities and frequent travel – money transfers – long term relationship – evidence of electronic communication – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 309.211, 309.221; r 1.15
CASES
He v MIBP [2017] FCAFC 206
STATEMENT OF REASONS
APPLICATION FOR REVIEW

From 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (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.
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 August 2019 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) Subclass 309 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named visa applicant (hereafter referred to as the applicant) applied for the visa on 1 August 2018 on the basis of their relationship with the review applicant (. At that time, 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 to satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.211 and cl 309.221 because they were not satisfied on the evidence that the parties were in a genuine and continuing spousal relationship.
The review applicant (hereafter referred to as their sponsor) appeared before the Tribunal on 24…

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) [2024] ARTA 107
Case: [2024] ARTA 107
Decision Date: 14 November 2024

CaseChat Overview and Summary

The case of Pham (Migration) involves a Vietnamese national who applied for a Partner (Provisional) (Class UF) visa, subclass 309, and had his application rejected by the Department of Home Affairs (DHA). The Tribunal reviewed the decision and concluded that the rejection was not justified and that the matter should be remitted for reconsideration. The applicant, who had a previous marriage and children, claims to have married the sponsor, an Australian citizen, on January 5, 2018, after meeting her in April 2017. The DHA delegate rejected the application, expressing concerns about the genuineness of the relationship, including the lack of evidence regarding financial aspects, household arrangements, and the nature of their commitment.

The legal issues before the court were whether the applicant and the sponsor were in a genuine spousal relationship at the time of the application and whether they continued to be in such a relationship. The court had to consider the definition of "spouse" under the Act, which requires a valid marriage, mutual commitment, genuineness, and a shared life to the exclusion of all others. The Tribunal found that the sponsor's evidence was credible and consistent with the documentary evidence provided, including chat logs, photographs, and financial remittance receipts. The court also noted that the DHA delegate had less evidence available at the time of the initial decision.

After considering the evidence, the Tribunal concluded that the DHA's decision was not well-founded. The Tribunal found that there was a sufficient level of evidence to support the genuineness of the relationship, despite the concerns raised by the DHA. The Tribunal set aside the DHA's decision and remitted the matter for reconsideration, allowing the applicant to meet the remaining criteria for the visa. The court's decision highlights the importance of considering all available evidence and the need for a thorough assessment of the relationship's genuineness in visa applications.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter should be remitted for reconsideration.BACKGROUND The applicant is a national of Vietnam and is 42 years of age. He has a son, born January 2010 and a daughter from his previous marriage to Thi Thanh Mai Do. His daughter, Do Quynh Nhu Ha, born in March 2005, is included in this application. His marriage to Thi Thanh Mai Do lasted from 2005 to January 2012 and ended by divorce. The sponsor was born in Vietnam and is also 42 years old. The sponsor first came to Australia in November 2005 on a Partner visa and is an Australian citizen by grant in April 2009. The sponsor was first married to Quoc Hung Vu from May 2004 to November 2010 and ended by divorce. The sponsor has two sons, aged 11 and 13 years respectively, from a further undisclosed relationship. The parties claim to have met in Canley Heights, NSW on 20 April 2017 and to have subsequently made a commitment to a shared life together to the exclusion of all others on the date of their marriage in Canley Heights, NSW, on 5 January 2018. The parties provided documents to the Department in support of the current application including but not limited to:. Evidence as to the parties’ identity and marital status; Witness support statements x 2. The delegate’s decision record, a copy of which was provided to the Tribunal with the review application states that the delegate was not satisfied evidence regarding the different aspects of the parties’ relationship demonstrated they were in a genuine spousal relationship. In particular the delegate noted the following:·the parties provided no evidence in relation to the financial aspects of their relationship;·the parties provided no evidence in relation to the nature of their household arrangements;·In relation to the social aspects of the parties’ relationship, the delegate accepted that the parties submitted evidence of travel together including boarding passes and flight tickets, and as well a selection of photographs taken with friends and family and on different occasions. The delegate accepted that this evidence indicates that the parties have undertaken some joint social activities whilst in the company of each other’s friends and families, including at their wedding ceremony and reception at a restaurant. The delegate noted that that these events were attended by members of both families. The delegate however expressed concern that no traditional wedding ceremony was held and considered explanations for this provided by the parties to be unpersuasive. ·In relation to the commitment aspect of the parties’ relationship, the delegate considered the parties explanation for the rapid inception and development of their relationship to be unpersuasive and that when interviewed the applicant displayed a lack of awareness of certain aspects of the sponsor’s circumstances, including: the street address of the sponsor in Australia where it was claimed the parties stayed together; the sponsor’s relationship history and her social network.·There was also an allegation received by DHA that the sponsor entered into a contrived relationship with the applicant for which the sponsor was paid money.·information provided by the applicant when interviewed regarding the inception and development of the parties’ relationship contradicted information provided in the applicant’s and sponsors relationship statements. Limited information was provided as to when the parties’ relationship commenced and how it developed to reach a decision to commit to marriage.

Evidence

Evidence Before The Court

Prior to the hearing the Tribunal received further documentary evidence including, but not limited to: Copy of DHA delegate decision record; Representative submission dated 19 September 2024, Sponsor statutory declaration, declared 20 September 2024; Applicant relationship statement dated 9 September 2024;·Photographs;·Chatlogs and other evidence of electronic communication;·Financial remittance receipts;·Witness support statements x 12.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant and sponsor were in a genuine spousal relationship at the time of application and continue to be in a genuine spousal relationship at the time of this decision. In the particular circumstances of this matter, concerns have been raised that the parties may be in a contrived relationship for the purpose of facilitating the applicant’s migration to Australia on a pathway which could lead to permanent residency in Australia. This calls into question as to whether the applicant and sponsor are reliable sources of information in relation to the circumstances of their relationship. Due to the nature of this sort of review the majority of oral evidence provided to the Tribunal at hearing came from the sponsor, who the Tribunal found to be a credible witness. Factor’s influencing the Tribunal assessment in relation to this factor include the spontaneous way in which the sponsor gave her oral evidence, frequently elaborating on issues of relevance without prompting from the Tribunal. The Tribunal has also formed the view that there is a general level of consistency between the oral evidence provided at hearing and the documentary evidence provided to the Tribunal in support of the review application. The Tribunal would also note that there is considerably more evidence before the Tribunal than was available to the DHA delegate from what is apparent from the material in the DHA file sent to the Tribunal in association with this review.Whether the parties are in a spouse or de facto relationship Clause 309.211(2) requires that, at the time the visa application was made, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. With limited exceptions that only apply in relation to a decision to grant or not grant a Subclass 309 visa made on or after 20 August 2022, the visa applicant must continue to be the spouse or de facto partner at the time of the Tribunal’s decision: cl 309.221. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen. ‘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). 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 visa applicant’s and sponsor’s 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) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.Are the parties validly married?

Decision

Reasons for decision

Given the findings above, the appropriate course is to set aside the decisions under review and remit the applications for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.DECISION The Tribunal sets aside the decisions under review and remits the applications for a Partner (Provisional) (Class UF) visa for reconsideration, in accordance with the order that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:·cl 309.211 of Schedule 2 to the Regulations·cl 309.221 of Schedule 2 to the Regulations Date(s) of hearing: 24 October 2024Representative for the Applicant: Ms Jennifer Nguyen (MARN: 2117717)

Ratio Decidendi

Legal Principle Established

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