Pham (Migration)

[2023] AATA 4343

Pham (Migration) [2023] AATA 4343 (15 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Duy Linh Pham

VISA APPLICANTS:  Ms Thi Ngoc Han Nguyen
Master Hoang Huy Nguyen
Master Huy Hoang Nguyen

REPRESENTATIVE:  Ms Jennifer Nguyen (MARN: 2117717)

CASE NUMBER:  2002772

DIBP REFERENCE(S):  BCC2019/1118551

MEMBER:Stephen Conwell

DATE:15 December 2023

PLACE OF DECISION:  

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction 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

Additionally the Tribunal remits the application by   the secondary applicants to the Department for reconsideration of the claimed dependency.

Statement made on 15 December 2023 at 2:46pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – sponsor’s visits to the applicant’s family – money transfers – COVID19 travel restrictions – mutual commitment to a shared life – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 5, 65, 360
Migration Regulations 1994, Schedule 2, cls 309.211, 309.221; r 1.15

CASES

He v MIBP [2017] FCAFC 206

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 on 22 January 2020 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 applicant) applied for the visa on 6 March 2019 on the basis of their relationship with their sponsor, 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 satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.309.211 because there was insufficient evidence that the parties were in a spousal relationship as set out in s.5F of the Act.  

4. The review applicant (the sponsor) was represented in relation to the review by his registered migration agent.

5. The Tribunal is in receipt of more information than was available to the delegate.  In reaching its decision the Tribunal did not consider a hearing to be necessary as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the parties are in a genuine spousal relationship. 

   Background

8. The applicant is a citizen of Vietnam. On the 21 June 2016 the applicant, her ex-spouse and one of her sons, NGUYEN Huy Hoang, travelled to Australia on Tourist visas. It is claimed that within weeks of arriving in Australia, the applicant’s ex-husband left the family and disappeared without explanation. There has been no contact since then. On 21 September 2016 the visas expired and the three remained onshore unlawfully.

9. The parties claim to have first met at a restaurant in Springvale on the 15 August 2016 when they were attending respective family functions. It is claimed that their friendship developed into a relationship when the applicant’s son broke his leg and the sponsor provided support to both of them, particularly with attending medical appointments.

10. In late May 2017, the couple began living together. The couple married on 26 April 2018. The sponsor, applicant and her son departed Australia for Vietnam on 10 September 2018. The parties’ wedding ceremony was held on 16 September 2018. The sponsor returned to Australia on 27 September 2018.

11. On 20 June 2019, the sponsor travelled to Vietnam to spend time with the applicant. He returned to Australia on 4 July 2019. After the lifting of travel restrictions caused by the global pandemic, the sponsor made two short trips to Vietnam in July 2022 and August 2022.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Whether the parties are in a spouse or de facto relationship

12. Clauses 309.211(2) and 309.221 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. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.

13. ‘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 applicant’s and sponsor’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

14. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties have provided a signed and certified copy of a Certificate of Marriage that shows that the marriage took place in Melbourne on 26 April 2018. The Tribunal is satisfied that the Certificate of Marriage is genuine and that 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 other requirements for a spouse relationship met?

15. The Tribunal must consider all the circumstances of the relationship (including the matters specified in r.1.15A) in determining whether the parties are in a “married relationship” as defined by s.5F(2). Accordingly, this Tribunal has had regard to the parties’ financial relationship; the nature of their household; the social aspects of the relationship; and the nature of their commitment to each other. On these aspects this Tribunal has considered all the evidence before it.

16. The applicants, through their representative, have provided various submissions and documentation to support their claimed spousal relationship. In particular the Tribunal has regard to the representative’s written submission of 11 July 2023 and previous submissions; the sponsor’s statutory declaration dated 12 May 2023 and the supporting documents, including evidence of several witness statements (Form 888), bank statements and other financial evidence, such as funds transfers. There are phone message extracts, photos of the parties in social settings (including of the sponsor’s visits to Vietnam in 2019 and two visits in 2022.

17. This Tribunal gives positive weight to the sponsor’s statutory declaration as well as to the written statement of Nguyen The Vinh, the applicant’s elder brother which seems credible in its recalling of specific details regarding the development of the relationship.

18. With respect to the criteria in Regulation 1.15A(3), the parties have provided a plausible account of their lives to date and of their relationship with each other, including evidence of their financial, emotional, household and social interaction. In his statutory declaration the sponsor describes how the parties have worked hard to maintain the relationship despite the separation of some three years.  He mentions that the applicant suffered a miscarriage in January 2019, which placed an unwanted emotional burden on the parties.

19. The evidence in support of their financial engagement includes evidence of a joint Australian bank account which the parties concede is not currently active whilst they are not together in Australia. Furthermore the sponsor has been assisting to support the applicant by regular funds transfer, which is supported by documentary evidence.

20. The Tribunal is satisfied that the parties have tried, despite the difficulties of living in different countries, to pool their financial resources and share their day-to-day household expenses to the extent that such things are possible in their current circumstances.

21. The evidence shows that the sponsor travelled to Vietnam with the applicant and her son on 10 September 2018 for wedding celebrations. The sponsor returned to Australia on 27 September 2018.  The Tribunal acknowledges that for two years from early 2020 international travel was severely restricted by the COVID pandemic. However the sponsor made two brief visits to Vietnam in July and August 2022. Whilst the couple have not spent a great deal of time together, duration does not necessarily dictate significance or bona fides, particularly given the challenges of their living in different countries and the intervention of the COVID pandemic.

22. There is now ample evidence of public recognition of the parties’ relationship, principally from statutory declarations and witness statements from the sponsor and from the parties’ respective family members. The Tribunal is also satisfied from the documentary evidence that the applicant and her sponsor indicate a knowledge of each other’s lives which is commensurate with a couple in a genuine and on-going spousal relationship.

23. Importantly, the Tribunal is satisfied the applicant and her sponsor have a shared understanding of what their future will look like and have clear aspirations and plans for their life together, including their shared hopes of the applicant improving her English language skills and sharing a household with the sponsor.

24. As this is the initial stage of a two stage process, and the second stage is required prior to the granting of any permanent visa, the Department will be in a position to reassess in due course whether the parties continue to meet the criteria.

25. For now, the Tribunal is satisfied that the applicant’s relationship with her sponsor is consistent with the requirements of the Act and Regulations. In respect of whether there is a mutual commitment to a share life as husband and wife to the exclusion of all others, the Tribunal is satisfied that the couple share this mutual commitment based upon the documentary evidence, the length of time in which they have maintained their relationship in spite of their living in different countries and the documentary evidence presented.

26. Accordingly, the Tribunal is satisfied that the parties are genuinely committed to each other to the exclusion of all others.

    FINDINGS

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

28. Therefore the applicant meets cl.309.211 and 309.221.

29. 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 309 visa.

    DECISION

30. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction 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; and

    Additionally the Tribunal remits the application by the secondary applicants to the Department for reconsideration of the claimed dependency.

    Stephen Conwell
    Member

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (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).