Phung (Migration)

[2023] AATA 3642

Phung (Migration) [2023] AATA 3642 (31 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Anh Phung
Mr Ngoc Tran Xuoi

REPRESENTATIVE:  Mrs Dai Doan Trang Vo (MARN: 0635245)

CASE NUMBER:  2002405

HOME AFFAIRS REFERENCE(S):          BCC2016/3959460

MEMBER:Justin Meyer

DATE AND TIME OF

ORAL DECISION AND REASONS:         31 August 2023 at 12:20 pm (VIC time)

DATE OF WRITTEN RECORD:                3 November 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications 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 of Schedule 2 to the Regulations

·     cl. 820.221 of Schedule 2 to the Regulations

Statement made on 03 November 2023 at 3:17pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) –genuine relationship before sponsor’s death – validly married – financial, household and social aspects of relationship – ages and simple arrangements, and supporting statements – sponsor’s family’s initial reluctance to accept relationship – nature of commitment – length of relationship – member of family – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 5F(2)(a)
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 820.211(7)(d), 820.221

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 6 February 2020 to refuse to grant the visa applicants Partner (Temporary) (Class UK) Subclass 820 visas under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 31 August 2023 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an oral decision with reasons in file number 2002405. 

4. This is an application for review of a decision made by a delegate for the Minister for Home Affairs made on 6 February 2020.  That decision refused to grant a visa for a Partner (Temporary) (class UK) (subclass 820) visa. 

5. That application was made on the basis of the applicant’s relationship with her sponsor to whom she was married, and the sponsor subsequent to the application died as confirmed in the death certificate, which has the date of death 26 August 2022. 

   FINDINGS

6. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy clause 820.211.  That clause, along with clause 820.221 require that, at the time the visa application was made and at the time of this decision, the visa application is the spouse or de facto partner of an Australian citizen, or an Australian permanent resident, or an eligible New Zealand citizen.

7. In this case, the applicant claimed to be the spouse of the sponsor who was an Australian citizen.

8. The central issue is whether the sponsor was the spouse of the applicant. ‘Spouse’ is defined in section 5F of the Act and provides that the person is the spouse of another where the two persons are in a married relationship. 

9. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of Australian law, and there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others.  The relationship must genuine and continuing, and the couple must not live separately and apart on a permanent basis.

10. In forming an opinion as to these matters, regard must be had to all the circumstances of the relationship, including the financial and social aspects and the nature of the commitment, and the parties’ household as set out in the regulations, particularly regulation 1.15A(3).

11. You submitted a number of documents to the department in support of the genuineness of the relationship, and you submitted a number of additional documents, in significant numbers, to the tribunal.  There are also supporting statements on form 888 from various parties.

12. And the tribunal finds from the marriage certificate that the parties married in 2016 in Australia.  The tribunal finds that the parties are married under a valid marriage, and that is required under the act in section 5F(2)(a). 

13. The tribunal has to consider all the circumstances of the relationship as specified in clause 1.15A(3), and this is determining whether you and your sponsor were in a married relationship as defined by section 5F, and whether the relationship falls within the definition of ‘spouse’.  I have had regard to all of the documents on both files. 

14. I note that the delegate found that there was not sufficient evidence for the parties to meet the criteria in clause 820.211, in summary because there was a lack of insight into joint finances, the 2016 tenancy agreement that was in the applicant’s son’s name, there were certain spelling mistakes in subsequent tenancy agreements, and there was a lack of evidence to verify social aspects.

15. The tribunal now makes its own assessment of financial aspects. 

    Financial Aspects

16. The applicant has supplied written evidence of a joint bank account with multiple entries.  I find this was their primary final asset for money therein.  The sponsor’s Centrelink payment was paid into there.  His work in the past as a handyman gave him an income as well which went into this bank account.  I find that various household utility bills and similar were drawn from this account, and a large number of these documents were supplied.

17. The tribunal finds that the parties’ financial arrangements were simple.  They rented and did not have major assets.  Given their circumstances, this is what could be expected, and I give the financial aspects of the relationship considerable weight.

18. The living arrangements of the parties were that they cohabited at first in Geelong in 2016.  They ultimately lived in Melbourne, in a long-term rental.  There is evidence of such an agreement in the parties’ name, and the owner has made statements to this effect. 

19. The tribunal finds that the parties shared housework together.  The tribunal finds that the applicant did most of the cooking and cleaning around the house.  Her sponsor did gardening and taking out the garbage and similar tasks. 

20. The tribunal finds that the household relationship was in keeping with the genuine and continuing spousal relationship.  And given their ages as people in their 50s and 60s at the time, they were not caring for children.  The tribunal gives household factor considerable weight.

    Social Aspects

21. The social aspects, there evidence of the parties representing themselves to others as being in a married relationship with each other.  There are many scores of photographs of the parties together and in social situations with family and friends. 

22. The sponsor’s son, Mr Vincent Chen, a mutual friend, Ms Kim Phuong To, gave oral evidence in the hearing concerning the social connections of the parties, overseas trip to visit family in Vietnam, and there are various declarants on file who knew the parties well and attested to the genuineness of their relationship.  Socialising took place between the parties and the other persons as described by the applicant.

23. The tribunal concludes that there is social recognition of the marriage and gives weight to this factor.

    Commitment to Each Other:

24. In terms of commitment between the parties, they got to know one another in around 2008.  In 2011, they started dating each other.  They visited one another in each other’s respective countries. 

25. The applicant came to Geelong in 2016.  The applicant brought her child, the secondary applicant, with her, who studied in Australia.  They committed to each other in a marriage ceremony in 2016, which was attended by approximately eight or nine people.

26. The sponsor finds that the sponsor’s family was initially reluctant to accept the relationship.  There were some questions about communication.  The sponsor’s son, Vincent, said that, ultimately, he and other family members accepted the relationship, particularly when his father was very ill. 

27. The tribunal finds that this evidence tallies with reality, especially when older children see a parent remarry.

28. The tribunal finds that the parties were committed to each other.  The applicant could understand the stressors that the sponsor was under.  The applicant and her sponsor gave emotional support to one another. 

29. The applicant said that she felt feelings of guilt when the sponsor became very sick with lung cancer, but she had to be overseas in Vietnam at that time to attend to a key family wedding. 

30. The applicant said that the sponsor had promised to take care of her, and he had done so.  She has a disability with one of her hands, and the tribunal finds that the parties were approve of each other. 

31. Having questioned the parties, I find there is no reason to believe that they had any gaps or breakups, or that their marriage had other parties involved in it, and I conclude that the marriage to the exclusion of all other people.  And the relationship, and indeed the marriage, spanned around about a decade or more.

32. The tribunal finds that there was a failure to communicate the correct marital status to Centrelink on the part of the sponsor.  The tribunal concludes that the sponsor’s level of detail with such forms and documents was not strong. 

33. In the light of the corroborative evidence about commitment, the tribunal finds that the parties were in a committed relationship, they gave each other emotional support, that the parties lived together throughout, and that they met the requirements of 5F of the Migration Act.

34. The tribunal notes that there is a death certificate as described, and there needs to be a threshold assessment of the spouse relationship before further findings are made. 

35. And the tribunal finds that the clause 820.211(7)(d) is met, and that is a clause which requires that the applicant satisfies the tribunal that they would have continued to be the spouse of the sponsoring partner if the sponsoring partner had not died.  The tribunal concludes that that, indeed, would have occurred.

36. Therefore, the tribunal was satisfied that, at the time the visa application was made, the parties were in a spousal relationship.  The applicant would have continued to meet the requirements of subclause 820.221(2), (5), or (6), except that the relationship between the applicant and the sponsoring partner has ceased because of the death of the sponsoring partner.

37. Therefore, the applicant meets clause 820.211 and clause 820.221.

38. Given the findings above, the appropriate course is the remit the application for the visa to the minister to consider the remaining criteria for a subclass 820 visa. 

    Conclusion

39. The time is now 12.20 pm, and the tribunal makes the following decision: 

    DECISION

40. The Tribunal remits the applications 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 of Schedule 2 to the Regulations

    ·cl. 820.221 of Schedule 2 to the Regulations

    Justin Meyer
    Member