To (Migration)

[2023] AATA 4327

To (Migration) [2023] AATA 4327 (18 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Thi Kim Ngoc To

VISA APPLICANTS:  Mr Anh Tuan Hoang

Master Duc Nhan Hoang

Master Anh Kiet Hoang

REPRESENTATIVE:  Mr Francis Tran (MARN: 9474457)

CASE NUMBER:  1903162

DIBP REFERENCE:  BCC2018/1834215

MEMBER:Glynis Bartley

DATE:18 December 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named 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

·reg 2.03A

Statement made on 18 December 2023 at 9:44am

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – relationship registered – joint business in home country – sponsor’s visits to Vietnam – shared care and support of the applicant’s children – joint social activities and family events – decision under review remitted          

LEGISLATION

Acts Interpretation Act 1901, s 2E
Births Deaths and Marriages Registration Act 1995 (NSW)
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 309.211, 309.221; r 1.09; 2.03

CASES

He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS

ISSUE

1. The issue in this case is whether the first named visa applicant, Mr Anh Tuan Hoang, is the de facto partner of the review applicant, Mrs Thi Kim Ngoc To.

   APPLICATION FOR REVIEW

2. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 December 2018 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (the Act).

3. The first named visa applicant (the visa applicant) applied for the visa on 26 April 2018 on the basis of his relationship with his 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.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.309.211. The delegate was not satisfied that the visa applicant was the de facto partner of the review applicant.

5. The review applicant applied for review of the decision to this Tribunal on 12 February 2019.

6. The review applicant appeared before the Tribunal on 11 December 2023 to give evidence and present arguments. The Tribunal also received oral evidence in person from the review applicant’s son (Mr Ngo The Cuong Pham) and daughter in law (Ms Thi Thu Nguyen), and by telephone from the visa applicant. The Tribunal was assisted by an interpreter in the Vietnamese language.

7. The review applicant was represented in relation to the review by her registered migration agent who did not attend the hearing.  

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

   BACKGROUND

9. The review applicant is 53 years old and is an Australian permanent resident. She was born in Vietnam and first travelled to Australia in June 2011 after being granted a Visitor visa (subclass 676). The review applicant was granted a Contributory Parent visa (subclass 143) on 23 August 2016. She has declared two previous marriages. The first ended in the death of her husband and the second in divorce. She has two adult children from her first marriage, both of whom live in Australia. The review applicant currently lives in Melbourne with her daughter.

10. The visa applicant is a 45-year-old citizen of Vietnam. He has declared one previous marriage that ended in divorce. The visa applicant has 14-year-old twin sons from that relationship, and they are the secondary applicants.   

11. The review applicant and the visa applicant (the parties) stated that they met in Vietnam in 2013 and formed a relationship in 2015. They began living together as a de facto couple in 2017 and registered their relationship with NSW Births, Deaths and Marriages on 27 January 2018.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. Prior to the hearing, the Tribunal was provided with additional documents including but not limited to the following: submissions by the review applicant’s representative, statements by the review applicant, and photographs.

13. Five years have passed since the delegate made her decision. I had the benefit of further evidence that was not available to the delegate, including oral evidence at the hearing. I spoke separately with the review applicant before taking evidence from the visa applicant and the witnesses. The parties gave generally consistent oral evidence regarding their relationship, employment, families and living arrangements during periods that the review applicant is in Vietnam. The inconsistencies were relatively minor in the context of the evidence as a whole. The parties were vague and evasive when asked about the contact that the visa applicant’s sons are having with their mother. Whilst this was troubling, I did not consider it was critical. I accepted the parties’ evidence regarding the circumstances in which they met, the nature of their relationship and their living arrangements. That evidence was supported by the witnesses at the hearing.

    Whether the parties are in a spouse or de facto relationship

14. 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 de facto partner of the review applicant, who is an Australian permanent resident.

    Are the parties in a de facto relationship?

15. ‘De facto partner’ is defined in s 5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s 5CB(2).

16. In forming an opinion whether they are in a de facto relationship, consideration must be given 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 1.09A(3) which is attached to this decision. Each of the specific matters contained in reg 1.09A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.

    Financial aspect of the relationship

17. There was consistent and compelling evidence that the parties jointly operate a real estate and property development business in Vietnam. The business was started before they formed a relationship and is in the review applicant’s sole name.

18. I accepted that the visa applicant and his two teenage sons have been living in a home owned by the review applicant since July 2017. He pays the outgoings on the property but does not pay rent or board. Both parties separately own blocks of land in Vietnam. They do not own any joint assets, have any joint liabilities, or owe any legal obligations to the other. This is not surprising given they live in different countries. The parties previously had around AU$28,000 in savings in a joint bank account in Vietnam but closed the account and used the money to purchase land. The land is not in joint names. I was satisfied that they use the income from their business to meet their household and other living expenses.

19. The review applicant has spent extended periods in Vietnam since 2017. I accepted that she lived in her home with visa applicant and his sons during those periods, and that the parties have pooled their financial resources and shared day-to-day household expenses. They gave consistent oral evidence at the hearing regarding the management of their finances in the future, including to buy property in Australia together.

20. The financial aspects of the relationship, in particular the joint operation of the business, are consistent with a genuine and continuing relationship.

    Nature of the household

21. The parties provided a consistent account of their living arrangements when the review applicant is in Vietnam. She has visited Vietnam multiple times since she formed a relationship with the visa applicant, including for 14 months from July 2017 to September 2018, and 18 months from December 2019 to May 2021. The home has three bedrooms over multiple floors, and the business is located on one level.

22. The review applicant’s parents live nearby and often come to visit the parties. The review applicant does most of the cooking and the parties share household chores, such as cleaning and laundry. The visa applicant’s teenage sons live in the household and the review applicant provides them with day-to-day care when she is in Vietnam. I accepted that the review applicant has formed a close bond with the visa applicant’s sons. The parties do not have any joint responsibility for the care and support of children. They gave consistent evidence regarding their intention to establish a joint household in Australia.

23. The establishment of a joint household for extended periods in Vietnam is consistent with a genuine and continuing relationship.

    Social aspects of the relationship

24. The photographs provided prior to the hearing confirm that the parties socialise with family and friends when the review applicant is in Vietnam. They have attended birthday parties, weddings, and various cultural celebrations together. The visa applicant and his two sons attended the recent birthday celebrations of the review applicant’s elderly father.

25. During the hearing, the parties gave detailed oral evidence about each other’s families, including the names and ages of immediate and extended family members. The visa applicant has met the review applicant’s newest grandson, which is confirmed by the photographs, and the visa applicant was aware of the relatively recent death of the visa applicant’s grandfather.

26. I accepted that the parties hold themselves out to family, friends and the wider community as being in a de facto relationship. The photographs show them at various locations throughout Vietnam, both alone and with groups of friends. The parties gave differing oral evidence about the care arrangements for the visa applicant’s sons while the parties are away on holidays without them. However, I did not consider this critical after having regard to the evidence as a whole. I accepted that the visa applicant may not have fully comprehended the questions about that matter.

27. The review applicant’s son and daughter in law attended the hearing in person and gave oral evidence in support of the application. They have lived with the parties for lengthy periods in Vietnam and attested to the genuineness of the relationship. The review applicant’s son gave particularly detailed evidence and told me that the visa applicant is caring and thoughtful towards him, his children and mother. For example, he picks them up from the airport and has collected the visa applicant’s grandchildren from school when they were unwell. Witness statements provided to the Department and the Tribunal also confirm that the relationship is recognised socially.

28. The social aspects of the relationship are consistent with a genuine and consistent relationship.

    Nature of the persons’ commitment to each other

29. There was consistent and compelling evidence that the parties have been in a committed relationship for more than eight years. I accepted that they have lived together for extended periods in Vietnam. They gave generally consistent oral evidence regarding their plans for the future, including to rent a home in Sydney and for the visa applicant to learn English and find work. The visa applicant’s sons will attend a local Catholic high school.

30. I was satisfied on the basis of the oral evidence at the hearing and witness statements that the parties draw considerable emotional support from each other. They communicate regularly by phone and various electronic means. The parties have formed close bonds with each other’s children and extended family members. The review applicant’s son and daughter in law gave oral evidence at the hearing regarding the closeness of their relationship with the visa applicant. I accepted that the parties provide companionship to each other and are committed to a long-term relationship.

31. The degree of commitment supports a finding of a genuine and continuing relationship.

    Overall assessment

32. Given the above findings, I was satisfied that at the time the visa application was lodged and at the time of this decision that the parties have a mutual commitment to a shared life to the exclusion of all others, that the relationship is genuine and continuing and they have lived together in Vietnam and intend to resume cohabiting in Australia. Therefore, they do not live separately and apart on a permanent basis. There was no evidence before me to suggest that the parties are related by family.

33. On the basis of the above, I was satisfied that the requirements of s 5CB(2) are met at the time of application and at the time of this decision. Consequently, the visa applicant meets cl.309.211 and cl.309.221.

    Are the additional criteria for a de facto relationship met?

34. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in reg 2.03A. Both members of the couple must be at least 18 years old: reg 2.03A(2). In this case, the visa applicant and the review applicant were at least 18 years old when the visa application was lodged.

35. The visa applicant must have been in the de facto relationship for at least the 12-month period ending immediately before the date of the application: reg 2.03A(3). This requirement will not apply in limited circumstances, such as: where the de facto relationship has been registered under a relevant State or Territory law (for applications made on or after 9 November 2009); where the applicant can establish compelling and compassionate circumstances for the grant of the visa; or in certain circumstances where the sponsor held, holds or is applying for a permanent humanitarian visa.

36. The review applicant’s representative provided evidence that the parties’ relationship was registered under the Births Deaths and Marriages Registration Act 1995 (NSW) on 27 January 2018. The relationship is therefore a registered relationship within the meaning of section 2E of the Acts Interpretation Act 1901 (Cth): reg 2.03A(5). Accordingly, the 12-month requirement does not apply.

37. For these reasons the Tribunal is satisfied that the visa applicant meets the additional criteria prescribed in reg 2.03A.

    Secondary applicants

38. As the Tribunal has found that the visa applicant meets the above criteria for the grant of the visa, the applications for the secondary applicants are remitted so they can be assessed in full by the Department.

    Conclusion

39. Given the findings above, the appropriate course is to remit the applications for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.

    DECISION

40. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named 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

    ·reg 2.03A

    Glynis Bartley
    Member

    
    

    ATTACHMENT  -  Extract from Migration Regulations 1994

    1.09ADe facto partner and de facto relationship

    (1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.

    Note 1   See regulation 2.03A for the prescribed criteria applicable to de facto partners.

    Note 2   The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.

    Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).