Ta (Migration)

[2024] AATA 3832

Ta (Migration) [2024] AATA 3832 (17 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Minh Hoang Ta
Ms Nguyen  Dan Vy Ta
Ms Nguyen Gia Han Ta

REPRESENTATIVE:  Mr Huu Loc Nguyen (MARN: 1795573)

CASE NUMBER:  2100589

HOME AFFAIRS REFERENCE(S):          BCC2018/3464800

MEMBER:Donna Petrovich

DATE:17 June 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl 820.211(2)(a) of Schedule 2 to the Regulations

·cl 820.221(1)(a) of Schedule 2 to the Regulations

Statement made on 17 June 2024 at 12:56pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – validly married – financial, household and social aspects of relationship and nature of commitment – length of relationship, family and community acceptance and support – consistent and credible evidence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A(3), cl 820.211(2)(a), 820.221(1)(a)

CASE
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 to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant (the applicant/visa applicant) applied for the visa on 12 September 2018 based on his relationship with his 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 Migration Regulations 1994 (Cth) (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 (the first named applicant) did not satisfy cl 820.211 (2)(a) of the Regulations.  This is because the delegate was not satisfied by the evidence that the couple were in a genuine, ongoing spousal relationship as prescribed by s 5F of the Act.  Consequently, it was determined by the delegate that cl 820.211(2)(a) and 820.211 of the Regulations was not met by the first named applicant.

4. The delegate also found that the secondary applicants did not meet cl 820.211 or cl 820.321 of the Regulations.

5. The applicants appeared before the Tribunal on 14 February 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Ms Thi Ngoc Anh Nguyen (an Australian permanent resident), Kim Ngoc Tran and Thi Quynh Trang Pham. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

   Background

6. The first name applicant is a 50 year old Vietnamese man who came to Australia on a visitor visa to visit his daughter who was studying in Australia at the time.

7. The sponsor has been previously married and divorced.  She owns a nail and beauty salon, employing staff who work for her at her shop.  This enables her to spend weekends with her husband (the first name applicant).  

8. The couple met at the St Albans Market when the first name applicant was buying produce and asked the sponsor for assistance with payment because of his unfamiliarity with the local currency.  Later they talked and shared a drink together.  They got on well and arranged to go to a Vietnamese temple together.  They saw each other a few more times and went for meals together. A few days later the first named applicant returned to Vietnam.

9. Almost one year later at the end of 2017 the sponsor called the first named applicant wishing him well for the New Year.  She then sent him gifts.

10. In May 2018 the first named applicant returned to Australia to see his daughter and the sponsor.  The couple’s relationship became serious.

11. By the end of 2019 the couple were speaking to each other every day after work.

12. On 3 July 2018 the first named applicant returned to Australia 3 July 2018.

13. On 21 August 2018 the couple were married in Footscray, Victoria, Australia.  A copy of the couple’s Certificate of Marriage appears in the Department file.

14. The first named applicant works in a factory making pallets.  He has worked at the same job for the last 6 years.

15. The couple own their own nail business and operate a business account.  The business is registered for GST.  It is a registered company which pays the household and business expenses.

16. The couple share household duties.  The Tribunal heard that the first named applicant does most of the cooking and cleaning as he gets home earlier. He also cooks for his daughter and his wife as she often works late.

17. The couple clean the house together on Saturdays as they are both at home.

18. Prior to their wedding they jointly purchased furniture and a car for the first named applicant.

19. The couple socialise with family and a group of friends.  They are part of a community group who meet regularly on Saturdays.

20. The Tribunal heard that the couple have both been previously married and divorced.  The translation of the first named applicant’s divorce certificate indicates he divorced around the beginning of 2011.

21. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. The issue in the present case is whether the applicant is in a genuine, ongoing spousal relationship with the Australian permanent resident sponsor.

    Whether the parties are in a spouse or de facto relationship

24. Clauses 820.211(2)(a) and 820.221 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 first named applicant claims to be the spouse of the sponsor who is Australian permanent resident.

25. ‘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 parties’ 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) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

26. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The couple’s Certificate of Marriage appears in the Department file evidencing their marriage in Footscray, Victoria   On the evidence, 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 Aspects of the relationship

27. The sponsor has her own beauty and nail salon.  All her living and business expenses are paid from this business account.  The first named applicant works in a factory manufacturing pallets. He told the Tribunal that his wages are paid into the business account as well.  So, the couple combine their income using the one account for everything.

28. As all their money is combined, the couple jointly pay for the property they lease and their utility bills.

29. They provided oral testimony at the Tribunal hearing that the sponsor owned her own car prior to their meeting and that the first named applicant purchased his car before their wedding.

30. Six years ago, the couple went to the “Furniture Warehouse” on Ballarat Road, Sunshine and purchased furniture prior to their wedding.  They purchased furniture for their home including a television and a mobile telephone.

31. They told the Tribunal that they were focused on saving for the future and purchasing their own home.

32. The Tribunal is satisfied by the evidence that the couple combine their income, share financial responsibilities, pool their finances, and support each other in day- to- day expenses.  The Tribunal places some weight in favour of the first named applicant.

    Nature of the Household

33. The couple live in a rental property as they are both named as tenants on the joint lease agreement for the property made on 17 April 2023. 

34. The couple share the cooking and cleaning.  They do the cleaning together on Saturdays when they are both at home and not working.

35. On Saturday they also do their weekly shopping together.  The Tribunal heard that on Sundays they cook a special meal, eat and sing Karaoke together.  They often share this time with family and friends. 

36. The Tribunal accepts the hearing evidence as consistent and credible, placing some weight in favour of the first named applicant.

    Social aspects of the relationship

37. The Tribunal heard from witness, Kim Lok Chi, that she had attended the couple’s wedding as she is the sponsor’s daughter.  She told the Tribunal that she regards the first named applicant as her stepfather and that he is very supportive of her, assisting her as much as he could. 

38. She told the Tribunal that she sees her mother and stepfather almost every weekend.  She testified that her stepfather cooks meals for her and her husband during the week, and if they are working late, he delivers meals to their home.

39. The sponsor’s daughter and witness told the Tribunal of the change in her mother.  She detailed how happy the sponsor is in her marriage, and that her previous marriage had not been a happy one, and that this is important to her.

40. The Tribunal also heard at the hearing that the couple attend a community group together with friends.  The community group is led by a doctor who keeps the Vietnamese community informed of current affairs.  The wider community views them as a couple when they attend this and other Vietnamese community events.

41. The Tribunal has reviewed the evidence and places weight in favour of the first named applicant.

    Nature of the persons commitment to each other

42. The couple have been together as a couple since 2018.

43. The sponsor’s daughter provided evidence to the Tribunal that after they met the couple lived together at her home.  She told the Tribunal that following their marriage, the couple moved out into their own rental property. 

44. The couple were married in a civil ceremony on 21 August 2018.  They have maintained their relationship for nearly six years.  They are accepted by family members.  They demonstrate care for each other in their day to day lives and in the broader community.

45. The Tribunal has considered the evidence, placing some weight in favour of the first named applicant.  This conclusion is based on the duration of the couple’s relationship and the fact that they have lived together continuously since they committed to each other. 

    Any other circumstances of the relationship

46. The Tribunal is unaware of any other circumstances.

47. The Tribunal is satisfied that the couple share a mutual commitment to a shared life to the exclusion of others, that they maintain a genuine, continuing relationship, and live together or do not live separately and apart on a permanent basis.

48. Based on the above the Tribunal is satisfied that the requirements of s 5F(2) of the Act are met at the time the visa application was made and the time of this decision.

49. Therefore, the first named applicant meets cl 820.211(2)(a) and cl 820.221(1)(a) of the Regulations.

50. 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 820 visa.

    DECISION

51. The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·cl 820.211(2)(a) of Schedule 2 to the Regulations

    ·cl 820.221(1)(a) of Schedule 2 to the Regulations

    Donna Petrovich
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (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).