To (Migration)

[2023] AATA 4331

To (Migration) [2023] AATA 4331 (19 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Van Hong To

VISA APPLICANT:  Mrs Thi My Linh Phan

REPRESENTATIVE:  Mr Nick Koenig (MARN: 9251516)

CASE NUMBER:  2011894

DIBP REFERENCE(S):  BCC2019/2380101

MEMBER:Cheryl Cartwright

DATE:19 December 2023

PLACE OF DECISION:  Melbourne

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 December 2023 at 4:47pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – validly married – money transfers – sponsor’s multiple visits to Vietnam – joint social activities and family events – plan to purchase a home – 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
Jayasinghe v MIMA [2006] FCA 1700

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 3 July 2020 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 4 May 2019 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(2) because there was insufficient evidence to demonstrate that the visa applicant was the spouse, as defined under s 5F of the Act, of a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. The visa applicant therefore did not satisfy cl 309.211.

4. On 21 July 2020 the Tribunal received an application from the review applicant for a review of the decision. Upon reviewing the submissions and further evidence, the Tribunal considered that, based on the material before it, a hearing was not required and that the review should be decided in the review applicant’s favour pursuant to s 360(2)(a). The Tribunal cancelled the hearing that was scheduled for 6 February 2024.

5. The review applicant was represented in relation to the review.

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 visa applicant satisfies cl 309.211 by meeting the requirements of subclause (2) or (3).

8. As Middleton J stated in Jayasinghe v MIMA [2006] FCA 1700 at [35]:

   Evidence of events subsequent to the visa application is relevant if it ‘tends logically to show the existence or non-existence of facts relevant to the issue to be determined’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. The Tribunal must consider all relevant evidence, which may include evidence of events subsequent to the date of application insofar as it assists in the task of determining whether the appellant and the sponsor were in a marriage relationship at the time of the application. The question of whether particular evidence is relevant and the weight it is to be given is clearly a matter for the Tribunal.

9. In deciding this matter, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application. In the circumstances of this case, the Tribunal considers that it is appropriate to make findings about cl 309.221 (a time of decision criterion) as well.

   Whether the parties are in a spouse or de facto relationship

10. Clause 309.211(2) requires that, at the time the visa application was made, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. With limited exceptions that only apply in relation to a decision to grant or not grant a Subclass 309 visa made on or after 20 August 2022, the visa applicant must continue to be the spouse or de facto partner at the time of the Tribunal’s decision: cl 309.221. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen. A copy of his passport is on file.

11. ‘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).

12. 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 reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) is effectively a question which must be answered: He v MIBP[2017] FCAFC 206.

    Are the parties validly married?

13. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties were married in Ninh Kieu Vietnam on 17 September 2018. A copy of the marriage certificate translated from Vietnamese is on the Tribunal’s file. 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?

14. Regulation 1.15A(3) provides relevant factors for determining whether the spousal relationship exists. These factors are (a) the financial aspects of the relationship; (b) the nature of the household; (c) the social aspects of the relationship; and (d) the nature of the persons’ commitment to each other.

    In considering these issues, the Tribunal has had regard to all the documents on the Department’s file and the Tribunal’s file.

    The financial aspects of the relationship

15. Any joint ownership of real estate or other major assets, any joint liabilities, the extent of any pooling of financial resources, whether one person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day-to-day household expenses are relevant factors to consider when assessing the financial aspects of the relationship.

16. There is no evidence before the Tribunal that the parties jointly own real estate or other major assets, that they have any joint liabilities, or that one person in the relationship owes any legal obligation in respect of the other.

17. The Tribunal notes that, with the parties living in different countries, it is difficult to combine finances; however, in a statement dated 16 June 2023 the parties’ representative states that the review applicant has provided regular financial support for the visa applicant and the parties have shared the costs of the review applicant’s regular visits to Vietnam.

18. The Tribunal notes the limited evidence provided in relation to the financial aspects of the relationship provided at the time of application and at the time of this decision and gives little weight to the lack of evidence of shared financial responsibility.

    Nature of the household

19. Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are relevant matters to be considered when assessing the nature of the household.

20. There is no evidence that the parties have any children together. The review applicant has three children from two previous relationships and the visa applicant has one child; however, she has listed no previous relationships.

21. Since the parties first met the review applicant has travelled to Vietnam many times; once in 2015, once in 2016, twice in 2017, thrice in 2018, twice in 2019 and an extended visit from February 2022 to February 2023 and, more recently, from April 2023 to June 2023. The Tribunal notes the representative’s arithmetic in his statement dated 16 June 2023; the total amount of time the parties have spent together in Vietnam is one year and 11 months.

22. On the regular visits by the review applicant to Vietnam the parties have lived together as a couple in a genuine spousal relationship.

23. In a statement dated 3 April 2023 signed by both parties, they state that the review applicant had visited Vietnam on 3 February 2022 and the parties had lived together in a genuine spousal relationship and undertaken a range of activities together.

24. During the review applicant’s one-year visit to Vietnam from February 2022 to February 2023 the parties:

    a.Paid respects at the graves of the visa applicant’s parents and attended the death anniversary of her mother.

    b.Visited the Pagoda at Ben Tre and visited Da Nang.

    c.Travelled to Thailand together, also Ho Chi Minh City and the beach resort of Vung Tau, Phu Quoc Island and Bac Lieu City.

    d.Attended the wedding of the visa applicant’s cousin.

    e.Attended the wedding of the review applicant’s nephew.

    f.Participated in the preparation and celebration of the engagement of the visa applicant’s son.

25. The parties provided a number of photographs showing the parties’ activities during the review applicant’s most recent visits to Vietnam. The Tribunal gives some weight to the photographs.

26. The parties state that at the time of the 3 April 2023 statement the review applicant had planned to return to Vietnam to attend the visa applicant’s son’s wedding in May 2023. Departmental movement records show that the review applicant visited Vietnam from 8 April 2023 until 15 June 2023.

27. The parties provided to the Tribunal, two statements of temporary residence translated from Vietnamese, showing that the review applicant, an Australian citizen, had been granted temporary residence in Vietnam. The first statement dated 3 August 2020 lists the dates for temporary residence as being from 28 March 2017 to 9 May 2017 and from 16 August 2018 to 20 September 2018. The second statement dated 15 May 2023 lists the dates for temporary residence from 22 July 2022 to 2 November 2022, from 12 December 2022 to 30 May 2023 and from 7 February 2022 to 3 February 2023. The Tribunal notes the documents are ’certification of temporary residence’ and were requested in order to demonstrate that the review applicant had visited Vietnam for extended periods of time, and also notes the dates of the documents are not directly related to the actual visits and the dates listing the temporary residence overlap. The Tribunal places little weight on these documents.

28. The Tribunal notes that, at the time of application, the parties had spent limited time together and gives little weight to this aspect of the relationship at that time.

29. In the years since the application was lodged, the parties have spent time together in Vietnam every year, except for during COVID lockdowns, and gives great weight to this as evidence of the parties establishing a household while living in separate countries.

    Social aspects of the relationship

30. Whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.

31. The parties provided a number of photographs, covering the years from when they met and married and during the review applicant’s visits to Vietnam, showing them in various social situations and locations. The Tribunal gives some weight to the photographs.

32. In a statement translated from Vietnamese and dated 1 February 2021, a sister of the review applicant Thi Tuyet Hang To, who lives in Sweden, states that she is close to the review applicant and knew his first marriage was unhappy. Ms To travelled to Vietnam to attend the engagement ceremony of the parties and ‘represent the groom side’.

33. In a statement translated from Vietnamese and dated 2 August 2020, Van Sac To, a brother of the review applicant states that the family loves the visa applicant and is pleased about the parties’ marriage.

34. In a statement translated from Vietnamese and dated 1 June 2020, a friend of the visa applicant Vu Thi Nga states that she and her husband attended the wedding of the parties and also states that the parties ‘are always side by side’.

35. In a statement translated from Vietnamese and dated 5 August 2020, a sister-in-law of the review applicant Phung Tan Bay states that ‘a long time’ after the breakdown of his first marriage the review applicant had met and fallen in love with the visa applicant. Ms Bay and her husband had participated in the parties’ engagement ceremony. She states that, after the parties were married they had visited her home many times and the visa applicant had ‘looked after thoroughly’ the death anniversaries of her parents-in-law.

36. In a statutory declaration dated 1 March 2021, an uncle of the visa applicant Tich Nam Phan states that he attended the parties’ wedding and the parties’ feelings for each other have remained strong since then.

37. In a statutory declaration dated 1 March 2021, Thanh Phung Pham states that he has been a neighbour of the review applicant since 2003 and he was aware of the problems in the review applicant’s earlier marriage. Mr Pham states that he and his wife travelled in Vietnam with the parties in 2019 and, at that time the review applicant had stayed on in Vietnam to be with the visa applicant.

38. In a statutory declaration dated 1 March 2021, a friend of the review applicant Thu Pham states that he and his wife travelled to Vietnam to attend the parties’ wedding. He states that the review applicant ‘had plenty of time’ to get to know the visa applicant before deciding to be married and he was certain about his decision.

39. The Tribunal notes the limited evidence provided at the time of application regarding the social aspects of the relationship and gives this limited evidence little weight.

40. The Tribunal notes the evidence provided at the time of this decision and gives some weight to the photographs and the statements and statutory declarations from friends and family as evidence that the parties present themselves to friends and acquaintances as being married to each other and, in the opinions of friends and acquaintances, that they socialise as a married couple.

    The nature of the persons’ commitment to each other

41. The duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the persons draw from each other, and whether the persons see their relationship as long-term are all aspects to be considered in determining the nature of the persons’ commitment to each other.

42. The Tribunal notes that, at the time of application on 4 May 2019, the parties had been married for approximately nine months and at the time of this decision they have been married for more than five years, and during that time have spent the equivalent of almost two years together. Given the difficulties of maintaining a relationship while living in different countries, the Tribunal gives great weight to this length of time.

43. In the statement dated 2 August 2020, mentioned above, by Van Sac To, Mr To states that ‘both of them are aged now’ and the parties need each other for support.

44. In the statement dated 5 August 2020, mentioned above, the sister-in-law of the review applicant, Ms Bay, states that the parties want to be close and ‘share the happiness and sadness together for the rest of their life’.

45. As stated in the statement dated 3 April 2023 mentioned above, the parties have demonstrated a commitment to family responsibilities such as visiting the graves of parents and attending weddings and engagement celebrations of each other’s children.

46. In the statement mentioned above and dated 16 June 2023 the parties’ representative states that the parties plan to save to purchase a home in Australia.

47. The Tribunal notes the lack of evidence in regard to the parties’ commitment to each other that was provided at the time of application and gives little weight to this lack of evidence.

48. The Tribunal notes the evidence provided at the time of this decision in relation to the parties’ commitment to a long-term relationship, particularly the numerous visits to Vietnam undertaken by the review applicant, and on balance is satisfied that the parties are committed to a long-term, genuine spousal relationship.

    Conclusion

49. As stated above, the Tribunal is satisfied that the parties are validly married, as required by s 5F(2)(a) of the Act.

50. After considering all the evidence before it and for the reasons given with respect to the reg 1.15A(3) matters, the Tribunal is satisfied that, both at the time of application on 4 May 2019 and at the time of this decision, the visa applicant and the review applicant:

    ·had and have a mutual commitment to a shared life as wife and husband to the exclusion of all others, as required by s 5F(2)(b) of the Act;

    ·had and have a genuine and continuing relationship, as required by s 5F(2)(c) of the Act; and

    ·lived and live together as much as possible as required by s 5F(2)(d)(i) of the Act.

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

52. 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 and are in a genuine spousal relationship. Therefore, the applicant meets cl 309.211 and 309.221.

53. 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

54. 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

    Cheryl Cartwright
    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).