Phillips (Migration)

[2022] AATA 2947

Phillips (Migration) [2022] AATA 2947 (19 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Leslie John Phillips

VISA APPLICANT:  Mrs Thi Thom Pham

REPRESENTATIVE:  Mrs Amanda Yanzhi Wu (MARN: 0958994)

CASE NUMBER:  1829865

DIBP REFERENCE(S):  BCC2017/3851584

MEMBER:Moira Brophy

DATE:19 May 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the 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 19 May 2022 at 12:50pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – rapidity of evolution of the relationship – financial aspects – nature of the household – social aspects – nature of the commitment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 309.211, 309.221

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 Immigration on 21 September 2018 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 19 October 2017 on the basis of her relationship with her 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 visa applicant did not satisfy cl.309.211 because the delegate was not satisfied the parties were in a genuine spousal relationship either at the time of application or at the time of decision.

4. The Tribunal exercised its discretion to hold the hearing by way of a video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not to be conducted by this method. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. The review applicant, Mr Leslie John Phillips appeared before the Tribunal by way of a video link on 24 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant Mrs Thi Thom Pham.

6. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

8. The visa applicant, Mrs Pham Thi Thom, is a 62-year-old female residing in Vietnam. She was previously married to Mr Truong Van Trinh in the period from 1982 to 1987. There was one son of the marriage, born in 1983. Mrs Thom was in a defacto relationship in the period from 1989 to 1993 with Mr Diem Van Pham with one son of the relationship being born in 1990. Both her sons reside in Vietnam and neither is seeking to migrate with the visa applicant.  Her parents and one sibling are deceased. She has three siblings living in Australia and two siblings in Vietnam.

9. The sponsor, Leslie John Phillips, is a 61-year-old male living in Southport, Queensland.  He was previously married in the period from 1989 to 1993 to Ms Cassandra Gilding. A daughter was born of the relationship in 1982. He was then married to Ms Dianne Helen Muldoon in the period from 1991 to 1995 and there was one daughter of the relationship born in 1992.  His mother is deceased and he has three sisters and one brother.

10. At the time of application, the parties stated they met in person on 3 May 2017 at the airport when the sponsor flew to Vietnam. Prior to that, since 2015  they had communicated via electronic means. They committed to a shared life to the exclusion of all others on 28 May 2017. They were married on 25 August 2017.

11. The delegate in refusing the application noted the following concerns:

    ·The delegate stated they had concerns as to the genuineness of the relationship due to the rapid nature of its evolution from date of the parties meeting in person to date of marriage.

    ·The delegate noted that money-remittance documentation provided by the parties indicating that the review applicant had transferred money to the visa applicant on several occasions in 2017. The delegate was not satisfied that this evidence demonstrated that the financial aspects of the claimed relationship were indicative of their being in a spousal relationship.

    ·The delegate noted that the parties had spent a period of time together in Vietnam in 2017, citing hotel-accommodation evidence. The delegate was not satisfied that these activities demonstrated that the nature of household was demonstrative of spousal relationship,but gave this aspect little weight in total assessment due to the visa applicant living offshore.

    ·The delegate noted that the review applicant and the visa applicant had provided photographs of themselves in the presence of third parties and attending social functions, including marriage ceremony but the delegate had concerns about the parties not being in formal clothes as depicted in photos of their marriage ceremony and that it was not attended by neighbours. The delegate voiced concerns that the wedding ceremony may be contrived for purposes of enhancing the application. On balance, delegate was not satisfied that the evidence established that social aspects of the relationship were demonstrative of their being in spousal relationship.

    ·The delegate noted that the rapidity of evolution of the relationship, the inability of the visa applicant to explain their reasoning for marrying in timeframe they did,  the lack of evidence of claimed contact between the parties and the visa applicant’s lack of knowledge of the routine and commonplace aspects of the review applicant’s life indicated that nature of their commitment to one another was not demonstrative of their being in spousal relationship.

12. On 7 October 2021, the Tribunal wrote to the visa applicant’s authorised representative requesting various types of information relating to the visa applicant and the sponsor’s relationship. On 21 October 2021, the visa applicant’s authorised representative wrote to the Tribunal in response, and provided to it the following materials:

    ·Relationship statements from the visa applicant and the sponsor, dated 2 October 2021;

    ·Supporting statement from a third party, dated 2 October 2021;

    ·Joint bank account statements showing the sponsor had transferred money to the visa applicant on several occasions between 2019-2020;

    ·Evidence of communication between the visa applicant and the sponsor over 2017-2020 period;

    ·Copy of a marriage certificate of the visa applicant and the sponsor;

    ·Will document relating to the sponsor, wherein the visa applicant is stated to be a beneficiary of the sponsor’s estate;

    ·Mortgage documentation for property in Australia, owned by the visa applicant;

    ·ID-documentation relating to the visa applicant;

    ·Travel documentation indicating that the sponsor travelled to Vietnam, presumably to visit the visa applicant, in at least 2020; some of the documents do not bear clear dates;

    ·Letter from the sponsor’s employer indicating that they perform duties as a spray-painter, undated;

    ·Photograph of parcels claimed to be gifts sent by the visa applicant to the sponsor, date unclear.

    Tribunal proceedings

13. In making its findings, the Tribunal has considered documents contained in the Department and Tribunal files and oral evidence provided by the visa applicant and sponsor at the hearing.

14. The parties gave coherent oral evidence about the circumstances in which they met, the development of their relationship and their current living arrangements. The Tribunal found them to be credible and was satisfied it could rely on their evidence in making findings of fact.

15. There were some inconsistencies in the oral evidence, and these were raised with the parties at the conclusion of the hearing in accordance with section 359AA of the Act. The parties were given additional time after to the hearing to respond to the concerns raised. The response received has been considered by the Tribunal and taken into account in the making of its decision.

16. The Tribunal accepts the parties’ oral evidence that they met in person on 3 May 2017 after having communicated via telephone and social media for some three months prior to that. That communication came about because the sponsor was doing some work at the home of the visa applicant’s sister and she introduced them. They committed to a relationship with each other to the exclusion of all others on 28 May 2017 and they were married in Vietnam on 25 August 2017. They lodged this application on 15 March 2017.

    Whether the parties are in a spouse or de facto relationship

17. 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. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

18. ‘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 review applicant’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?

19. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. There is nothing in the information before the Tribunal to cast doubt on the validity of the parties' marriage on 25 August 2017 and the Tribunal accepts it is a valid marriage. Consequently, in the absence of any evidence to the contrary, the Tribunal finds 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?

    Financial

20. The review applicant lives in a home he purchased in 2006. The property is mortgaged and he has a mortgage repayments of $1500 per calendar month. He is working full time as a contractor for Australia Post and he also does some security work on weekends. His security work has been adversely impacted by Covid. The review applicant said he used to be a spray painter, but the work supply was not reliable and he worried as to the impact of the fumes on his health so when he was offered the role with Australia Post he took it. He also does building renovations, the last renovation he did was a bathroom renovation for the sister of the visa applicant.

21. The visa applicant lives alone in Hai Phong Vietnam. She lives in a home she owns. She works as a baby sitter and on her farm growing rice. She owns two houses in Hai Phong as well as some arable land on which she grows rice. She lives in one house and her son and a nephew  live in the other. She also own a house in Australia. That house was purchased in her name from an inheritance she received from her father.

22. They do not have any shared assets or liabilities.

23. Both parties demonstrated a reasonable knowledge of each other’s employment and income. The Tribunal accepts with the parties living in separate countries it is difficult to provide evidence of shared finances.

    Nature of the Household

24. The Tribunal accepts that since their marriage in August 2017 the review applicant and the visa applicant have spent less than two months together. The Tribunal accepts the parties stayed together as a couple in the periods the review applicant was in Vietnam. The Tribunal accepts the time the parties could have spent together has been adversely impacted by COVID and the fact the visa applicant has not been able to obtain a temporary visa to travel to Australia and as a contractor the sponsor is not entitled to paid leave.

25. The parties gave consistent evidence that the visa applicant and review applicant undertook to share the household chores, the cooking, and the washing. When together they would do the shopping together and they would generally share costs.

26. The parties gave consistent evidence about their plans to establish a joint household in Southport, Queensland. The Tribunal places little weight on this aspect of the relationship given the limited periods of cohabitation since marriage.

    Social Aspects of the Relationship

27. The applicant provided the following statements in support from witnesses to the Department:

    • Dinh Hung Tran dated 6 November 2018
    • Kevin William Thompson dated 28 October 2018
    • Reginald John Bourke dated 25 October 2018
    • Michael David Harris dated 1 November 2018
    • Pham Thu Thuy dated 1 October 2018
    • Thi Quyen Pham dated 29 October 2018.

28. The authors of the statements attested to the fact they knew the parties personally and that considered their relationship to be genuine and continuing.

29. The Tribunal accepts from the photographic evidence, the supporting documentation as outlined above, and their oral testimony at hearing, the parties have as a couple spent times with the visa applicant’s family and friends. Their relationship as a married couple is known and accepted within their community.

30. The Tribunal accepts on the evidence before it the parties present to their family and friends as a married couple.

    Nature of the persons Commitment to each other

31. Given the concerns previously raised by the delegate, the Tribunal carefully considered the evidence as to the nature of the commitment of both parties to the relationship. The Tribunal accepts the parties have known each other since 2015 when they commenced communicating using electronic means.  Due to Covid and the uncertainty of the review applicants work the parties have only spent a limited time together physically but the Tribunal accepts they maintain their contact through electronic communication. That communication was evident in that the parties were familiar with the details of each other’s family. They had both previously been in relationships and recognised the benefits of having a companion to share things with.

32. The Tribunal accepts their primary commitment is to their relationship with each other and that while a visa was a part of the equation their commitment was not dependent on the visa being granted.

33. The parties demonstrated a detailed knowledge of each other’s lives and daily routines. Their evidence about their future plans was consistent. The Tribunal is satisfied that the visa applicant and her sponsor were committed to being in a long-term relationship. The degree of companionship and emotional support the parties clearly draw from one another provides significant weight in support of the finding that the parties are in a genuine and continuous relationship.

34. Based on all the evidence the Tribunal finds the parties have a commitment to each other consistent with them being in a spousal relationship. The Tribunal found their evidence of their anguish at their continued separation from each other to be genuine and persuasive. There was no doubting their commitment to each other and to their being reunited as a couple.

35. Given the above findings, the Tribunal is satisfied that at the time the visa application was lodged and at the time of this decision the parties are validly married, have a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing. The Tribunal finds that they intend to live together in Australia and that they therefore do not live separately and apart on a permanent basis.

36. Accordingly, the Tribunal finds that the applicant satisfies the definition of 'spouse' in s.5F (2) (a)-(d), and that the parties were in a spousal relationship.

37. The review applicant(sponsor) is an Australian citizen.

38. Given these findings the Tribunal is satisfied that at the time the visa application was made, and at the time of this decision, the parties were in a spousal relationship. The Tribunal finds that the visa applicant is the spouse of the review applicant and satisfies cl.309.211 (2) and therefore cl.309.211. The Tribunal finds that at the time of decision the visa applicant continues to satisfy cl.309.211.

39. Therefore, the visa applicant satisfies both cl.309.211 and cl.309.221.

40. 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

41. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the 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]

    Moira Brophy
    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).