Ta (Migration)
[2020] AATA 1814
•13 March 2020
Ta (Migration) [2020] AATA 1814 (13 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Ms Thi My Hien Ta
CASE NUMBER: 1707326
HOME AFFAIRS REFERENCE(S): BCC2014/3189869
MEMBER:Peter Vlahos
DATE:13 March 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl.820.211 of Schedule 2 to the Regulations
·cl.820.221 of Schedule 2 to the Regulations
Statement made on 13 March 2020 at 9:23am
CATCHWORDS
MIGRATION – refusal – Partner (Temporary) (Class UK) visa – Subclass 820 –parties validly married –lived together–evidence of long term commitment to a spousal relationship – genuine and continuing relationship– decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5, 65, 376
Migration Regulations 1994 (Cth), r 1.15, Schedule 2, cls 820.211, 820.221CASES
He v MIBP [2017] FCAFC 206STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 24 November 2014 on the basis of her relationship with her 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 (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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2) (that the applicant is the spouse or de facto partner of the sponsor as defined in s.5F or s.5B) and therefore did not meet c.820.221.
The applicant appeared before the Tribunal on 19 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from: Ho Hoang Nam NGUYEN (Sponsor), Ms Thi Dao HO (SP's mother), Ms Thi My Tien TRUONG (Aunt).
The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether at the time of application and at the time of decision the parties were in a genuine spousal relationship.
Whether the parties are in a spouse or de facto relationship
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 applicant claims to be the spouse of the sponsor 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 parties’ 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?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal is satisfied that the parties married on 26 October 2014 at Springvale South, Victoria as evidenced by a marriage certificate provided to the Department and Tribunal.[1] 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).
[1] See Department of Immigration File no. BCC2014/3189869 Folio [36]
Are the other requirements for a spouse relationship met?
The Tribunal has had the benefit of observing material and evidence which was not provided to the Department’s delegate from the review applicant. The information included submission from the review applicant’s migration agent concerning the relationship, bank statements of transactions and other photographic documentation concerning the relationship.
Background
The applicant arrived in Australia from Vietnam at the end of 2013 on a Student visa. She studied English language studies and a Diploma of Health Science which she told the Tribunal she had completed (but no documents were provided showing this). Currently, she is working at a local café/bakery.
The applicant told the Tribunal that she met her future husband through her family contacts. It would seem (according to the applicant) that her mother knew the applicant’s mother when in Vietnam and had arranged for his mother to assist the applicant when she arrived in Australia.
When the applicant arrived in Australia, she was met by her husband’s mother and – the future husband and was for a while assisted by both in order for her to become familiar with her surroundings. The applicant and her ‘future husband’ became good friends but did not have any relationship. As time progressed the two became close and the friendship developed into a relationship. After a courtship of six months, the two informed their respective families and were married on 26 October 2014.
Financial aspects of the relationship
The applicant has provided written evidence of the relationship’s finances to the Tribunal and the Tribunal has had the opportunity to consider and weigh that information after having also heard the applicant’s explanations concerning various aspects of that information.
The Tribunal noted that the delegate in his decision record stated that the sponsor provided evidence as follows:
·Letter from the applicant and the sponsor to payroll officers, dated 19.September 2014
·Letter stating that the applicant and sponsor opened a joint-account on 19 September 2014
·Joint bank statements and transaction listings for the applicant and sponsor dated between 1 July 2015 to 11 September 2016
·Letters from the Commonwealth Bank addressed to the applicant regarding fraudulent transactions on an account that is not your joint account held by the applicant or the sponsor, dated 17 August 2016 to 25 August 2016.
The Delegate placed ‘no weight’ on the provided letters because the applicant and the sponsor had not addressed the concerns raised in that correspondence. As with regards to the applicant’s and sponsor’s joint bank accounts, the delegate determined that there was no convincing evidence of joint finances.[2] The delegate concluded that the applicant and sponsor had not pooled their financial resources in a way that would represent them as being a married couple.
[2] See AAT File Department’s decision record, Folio [16]
At the hearing both the applicant and sponsor were asked to provide an explanation as with regards to the financial aspects of their marital relationship. The Tribunal was told that the sponsor and applicant spent money together on the necessities but a considerable portion of the husband’s money (earnt) was provided to his mother on a weekly basis to provide help to her with meeting the monthly mortgage payments for her home. The amounts varied according sponsor and applicant. Prior to the husband doing his apprenticeship, he provided his mother with AUD$800 per month and later with the reduced amount of AUD$500. The applicant told the Tribunal that her earnings would be deposited in the couple’s joint account and used to pay the telephone bills, car registration and other necessities of life as was required. Money was also sent by the applicant with the consent of her husband to her parents for the payment of their medical costs but no further amounts have been sent in recent times.
The Tribunal noted that from the documents provided by all parties, there was some financial mingling one would expect from a ‘married couple’. However, what needs to be determined in this instance is whether on the evidence provided - was this sufficient to determine in the Tribunal’s mind that what had been described was appropriate. Indeed, the Tribunal took into account that there was an ongoing commitment by the husband of making payments to his mother (on a weekly basis) – the contribution to his ‘mother’s house mortgage’. It was recognised and referred to by both parties and neither expressed any doubts about this payment being made as it was. Though, little was said about this arrangement and its benefits to the couple in the long-term, the fact that the couple’s residence was the mother’s mortgaged home provided some form (or example) of joint-financial commitment a couple would make to parents with an overall long-term benefit for all – as one would expect in a typical southeast Asian family. Similar and accommodating financial commitments were also provided (when required) to the applicant’s sick parents in Vietnam
Also, the applicant knew of the income. The applicant currently works. Her income was described consistently between the parties.
Whilst the joint-account may have seemed ‘demonstrative’ the explanations provided by all parties when asked by the Tribunal to explain (individually) the circumstances as far as it concerned their finances – all provided consistency in their comments and the Tribunal nonetheless finds that there is evidence of joint financial relationship and the Tribunal accepts that there is a pooling of financial resources.
The Tribunal gives weight to the financial aspect of the relationship.
Nature of the Household
The living arrangements of the persons are a relevant matter to consider in determining the nature of the household. The Tribunal took account of the comments made by the delegate in his decision record concerning the Departmental officers’ visit to 17 Nicholas Street, Keysborough on 24 January 2017. The delegate indicated that the visit to the applicant’s residence revealed that she was not in residence there as she claimed. The applicant told the Tribunal that on that day she had gone to work and was returning to her home. The applicant went on to tell the Tribunal that most of her clothes was in boxes and those boxes were shown to the Department’s investigator. The applicant explained that (in that week) she had (with her friends) gone for a four-day holiday along the Great Ocean Road and returned and went to work. This may have coincided with the Department’s investigator’s visit. The applicant went on to tell the Tribunal that she has been living with her husband and mother-in-law since their marriage and her ‘home’ was situated at 17 Nicholas Street, Keysborough, Victoria. The Tribunal accepts that the applicant has lived (where she stated) since her marriage to her husband. No other address was provided as a possible residence. The applicant described her daily routine as making preparation each day for breakfast which both enjoyed and then each would go to work. Each would assist the other with want was needed to be done around the house and when time permitted would enjoy time shopping at the local shopping centre. The mother-in-law also assisted in these daily household happenings.
The Tribunal gives regard to the parties’ declarations and evidence and conclude that the parties lived together at an address (as stated) in Melbourne. The parties have given a consistent account of their daily life and routine at that residence including details of their daily routine.
The parties live in the husband’s mother’s home (the applicant’s mother-in-law). There are photographs of the parties in various domestic scenes which the Tribunal finds are indicative of shared responsibility combined with living arrangements.
It is not submitted that the parties look after, or have looked after, children.
The Tribunal accepts that the parties lived with the sponsor’s mother at her home, on or around of when they married and that they still live together at the time of this decision. The Tribunal bases these findings on the consistent evidence of the parties and oral evidence of the witness (mother-in-law) and other documents and photographs on file.
Social Aspects of the relationship
There is evidence of the parties representing themselves to others as being married to one another. The Tribunal refers again to the statutory declarations of the parties and the numerous photographs (on the Tribunal’s and Department’s file) recording the two at various social functions with family and friends. The Tribunal also took note of the couple’s photographs with family members (the applicant’s) while on holidays in Vietnam.
The applicant and sponsor have provided credible evidence that their families and friends are supportive of their marriage. Also, the applicant’s mother-in-law provided evidence telling the Tribunal what a positive influence the applicant had and is to her son since she entered his life. Also, joint social activities are undertaken regularly.
The Tribunal finds that there is social recognition of the marriage and give weight to this aspect of the application.
Nature of person’s commitment to each other
The parties have known each other since 2013 and made a mutual decision to enter into a relationship in 2014 and were then – married. In total, they have known each other for a period of seven years. The Tribunal accepts the applicant’s account of how the relationship commenced between the two and that the parties began living together as husband and wife after their marriage in 2014.
The Tribunal finds that the parties reside together and have done so continuously from 2014 to the present. The evidence and declarations support this conclusion.
Having the oral and written evidence of the parties as provided to the Tribunal, the Tribunal concludes there is close communication between the parties. Daily concerns are discussed in detail as the oral evidence before the Tribunal revealed, and mutual interest and care was observed. The Tribunal gives regard to this evidence.
The couple support one another in their daily life. Their friends support them in their married life.
The Tribunal finds there is evidence of long term commitment to a spousal relationship.
Certificate issued pursuant to s.376 of the Act
The Tribunal also considered the matter of the Certificate which was issued by the Department, signed by Delegate of the Minister for Home Affairs, Ms Catherine Carroll dated 10 April 2019.
The Certificate was issued pursuant to s.376 of the Act and stated that the applicant’s husband and sponsor had contrived with the applicant to partake in ‘fake marriage’ for the purposes of migration only. It went on to raise allegations that the parties lived at separate addresses and lived separate lives.
The Tribunal considered and concluded that the Certificate in question had been validly issued by the Department of Home Affairs.
The Tribunal put this information to the parties and to their representative and provided them with a period of time to provide their explanation to these allegations. Subsequently, the parties through their migration agent provided a written response which refuted the allegations made.
Accordingly, the Tribunal finds that the certificate is valid but that the information to which the certificate applies is not relevant to the applicant’s review because the information was determined by the Tribunal (with the evidence provided to the Tribunal by the parties) as not relevant to the visa under consideration.
Having had regard to the financial aspects, the nature of the household, the social aspects and the nature of the persons’ commitment to each other, the Tribunal considers these findings together demonstrate that there is a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that they show that the relationship is genuine and continuing. The Tribunal is satisfied that the parties live together. They therefore meet the requirements of s.5F for a spousal relationship.
Given these findings the Tribunal is satisfied that at the time of the visa application was made and at the time of this decision the parties were in a spousal relationship.
Therefore the applicant meets cl.820.211 and cl.820.221.
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
The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl.820.211 of Schedule 2 to the Regulations
·cl.820.221of Schedule 2 to the Regulations
Peter Vlahos
MemberATTACHMENT - 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).
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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