To (Migration)

[2022] AATA 410

To (Migration) [2022] AATA 410 (1 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Hoa To

REPRESENTATIVE:  Mr Cuong Vo (MARN: 9250600)

CASE NUMBER:  1816547

HOME AFFAIRS REFERENCE(S):          BCC2017/476144

MEMBER:Meena Sripathy

DATE:1 February 2022

PLACE OF DECISION:  Sydney

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 01 February 2022 at 1:34pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – birth of one child after visa application made, and valid marriage and birth of another child after review application made – financial, household and social aspects of relationship – nature of commitment – substantial evidence provided – sponsor granted permanent visa on basis of previous marriage – current relationship possibly started during previous marriage – sponsorship limitation period now passed – decision made with no hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB(2), 5F(2)(a), 65, 360(2)(a)
Migration Regulation 1994 (Cth), rr 1.09A(3), 1.15A(3), 1.20J, Schedule 2, cls 820.211(2)(a), 820.221(4)

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 on 30 May 2018 by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 6 February 2017 on the basis of her relationship with her sponsor, Hoai Nam Phan, who is an Australian permanent resident. 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 did not satisfy cl 820.211(2)(a) because the delegate was not satisfied, on the evidence provided, that the applicant was the spouse or de facto partner of the sponsor at time of application or decision.  The delegate found that insufficient evidence had been provided to show that the parties were in a genuine ongoing relationship.  This was despite the fact that evidence was provided of the birth of a child of the relationship since the application was made.  The delegate found that this of itself did not constitute immediate proof that the parties were in an exclusive and ongoing relationship and concluded there was insufficient evidence to satisfy the delegate of a genuine spouse or de facto partner relationship.

4. The applicant applied for review of the decision to the Tribunal on 6 June 2018, submitting further evidence addressing financial, household, social and nature of the commitment aspects of the relationship with the review application, and again on 1 November 2018 and 9 November 2019.  This evidence included DNA test results relating to the first child of the relationship.  In August 2021 the applicant provided evidence of birth of a second child of the relationship in July.  In October and November 2021, following a request for updated evidence by the Tribunal, the applicant submitted further documents and evidence in support of the review.   Details of the evidence are included in the discussion below.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence before the Department

7. The applicant, born in 1995, is a Vietnamese born national who arrived in Australia in January 2015 on a student visa. She claims to have met the sponsor, an Australian permanent resident, on 15 January 2015 and they moved in together one year later in January 2016.   She lodged the present application on 6 February 2016. She gave birth to a daughter on 20 July 2017.

8. The sponsor, born in Vietnam in1992, is an Australia permanent resident since April 2012.  He declared a previous marriage relationship with Wendy Vo.  They married in May 2013 and that marriage ended in September 2015 by separation. There were no children of the relationship. He was sponsored by his ex wife for a Partner visa on 22 May 2013.  No previous relationships were declared for the applicant. 

9. Departmental records included the sponsor was granted Subclass 820 and Subclass 801 visas on 22 May 2015.  

10. The applicant provided information in the application that she and the sponsor have been living together since January 2016, have a joint bank account and pool their financial resources, share household work, socialise together and have introduced each other to their friends and families. The applicant was four months pregnant at the time of application and claimed it was a child of the relationship.  Supporting evidence of supporting witness statements,  bank statements for a joint account opened on 30 January 2017, photos of the couple, including socialising with friends and birth of their daughter, birth certificate for child born in July 2017 naming both parties as parents, drivers licence and NSW photo ID cards showing address were submitted with the application.

11. On 10 January 2018 and again on 7 February 2018 the applicant was requested to provide further information to address regulation 1.20J (limitations on sponsorship) on the basis that the sponsor had sponsored a partner within the last 5 years and inviting information addressing the waiver of this requirement. A further request for information was sent to the applicant on 12 March 2018 for further evidence including police clearance certificates for the applicant and sponsor and evidence of de facto relationship at least 12 months prior to the application and evidence of ongoing relationship. 

12. Departmental file notes indicate that as the previous sponsorship was made on 22 May 2013, the 5 year time period had passed by May 2018 and therefore r.1.20J no longer affected the application.  However, the notes indicate, no further evidence of the relationship was provided and the delegate was not satisfied the applicant had demonstrated a genuine de facto relationship on the information provided and refused the application on that basis on 30 May 2018.

13. There is no indication in the Department file that any consideration was given to conducting an interview with the parties in this case. While the Tribunal notes that correspondence relating to the application of r.1.20J and inviting further evidence was sent, with no responses received, plausible evidence of the relationship was lodged with the application and subsequently including a birth certificate relating to a child of the relationship. In these circumstances it is unfortunate that an attempt to interview the applicant and sponsor was not made prior to the decision being made, particularly given the significant backlog and delays at the AAT at this time.

    Evidence before the Tribunal

14. While the matter has been before the Tribunal, a substantial amount of further evidence of the relationship has been provided including the following:

    ·Statutory Declarations Form 888 from Van Nui Vu and Thi Kim Lien Do, friends of the applicant dated January 2018;

    ·(brief) Relationship statutory declarations of applicant and sponsor dated 30 January 2018;

    ·Birth certificate of first child of the relationship born in July 2017;

    ·DNA paternity test result dated October 2018 relating to first child of the relationship born in July 2017;

    ·Statements from joint bank account for periods between 2020 and 2021;

    ·Residential tenancy agreements naming applicant and sponsor as joint tenants at various addresses from May to  November 2018; November 2018 to November 2019 and most recently July 2021 for (6) six months;

    ·Marriage certificate indicating applicant and sponsor married on 9 November 2019;

    ·Birth certificate for second child of the relationship born in July 2021;

    ·Screenshots of social media posts by applicant referring to the sponsor and their child;

    ·Substantial number of photographs of applicant and sponsor and their child/children presenting as a couple at social gatherings with others, including family and friends; and also photos of the couple with their child on holidays in Vietnam and Thailand in 2020 including with family of applicant and sponsor there;

    ·Relationship statement from applicant and sponsor dated December 2021 setting out inception and development of relationship and continuous cohabitation since January 2016 and that they have two children together;

    ·Third party statement of Kim Dung Nguyen, mother’s group friend of the applicant,  supporting applicant and sponsor’s relationship dated 2021

    Whether the parties are in a spouse or de facto relationship

15. Clause 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.

16. 'De facto partner' is defined in 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).

17. ‘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).

18. At time of application the applicant and sponsor were not married and claimed to be in a de facto relationship, having commenced living together in January 2016.  The Tribunal notes that since then, in evidence submitted to the Tribunal, the applicant and sponsor provided a marriage certificate evidencing a marriage that took place in Cabramatta on 9 November 2019.  If the parties are validly married, they meet the requirements of a married relationship, but not a de facto relationship. On the basis of the evidence of the marriage on 9 November 2019, the Tribunal finds 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).

19. Therefore, the Tribunal will assess the relationship as a de facto relationship at time of application and as a spouse relationship as at time of decision. 

20. In forming an opinion whether they are in a de facto or a spouse 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 parties’ household and their commitment to each other as set out in reg 1.09A(3) (or r.1.15A(3) for spouse relationship). Each of the specific matters contained in reg 1.09A(3) or r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

21. As indicated above, a substantial amount of evidence has been submitted since the application was lodged in February 2017 and since the delegate’s decision was made in May 2018.  The Tribunal has considered all of the circumstances of the relationship, and in particular the matters referred to in r.109A(3) and r.1.15A(3): being financial and social aspects of the relationship, nature of the household and nature of the commitment between them.  It makes the following findings. 

22. The applicant and sponsor claim to have been living together since January 2016 and continuously since then.  In support of this they have provided evidence of residential tenancy agreements at various addresses, correspondence and licences showing their address, and birth certificates for the children showing their common address.  On the basis of the evidence the Tribunal accepts they are and have been living together since then as claimed. They are two children of the relationship, born in July 2017 and July 2021.  The Tribunal accept on the evidence of the content of their Statutory Declarations and those of their friends in support, and various photos submitted that they live with and jointly care and are responsible for the children. They claim to pool and share financial resources and expenses and have submitted statements of a joint bank account held over the years, and into which they deposit and withdraw funds and receive Centrelink income and child benefits.  The evidence of photos and social media posts and supporting Form 888 statements support that the applicants represent as a couple to others and undertake joint social activities.  They have submitted photos of travel together to Vietnam and Thailand in 2020 and Departmental movement records indicate they have travelled together in 2019 and 2020.  The Tribunal accepts the evidence and findings relating to the financial, social, household aspects of the relationship are all strongly supportive of a genuine and ongoing de facto and now married relationship. 

23. The Tribunal accepts the applicant and sponsor have been continuously cohabiting since January 2016, a period of 6 years now.  They have two children together.  They have been presenting and socialising as a couple and as a family in this period.  While the Statutory Declarations provided contain brief information and say little of the degree of companionship and emotional support they draw from each other and whether they see the relationship as long-term the Tribunal is prepared to accept from the facts of their continuous cohabitation over 6 years, having two children together and traveling together to visit and share with family in Vietnam that the commitment between them is consistent with that of a genuine and ongoing partner relationship.

24. In terms of assessing the de facto relationship at time of application the Tribunal finds there is no evidence to indicate that they are related by family, and their subsequent marriage in 2019 is consistent with this.

    Other circumstances

25. The Tribunal observes that the sponsor was sponsored for a Partner visa on the basis of a previous marriage in 2013 and was granted a permanent visa on the basis of that sponsorship in May 2015.  The parties in this application claim to have met in January 2015 and indicate they were courting during 2015 and commenced living together in January 2016.  There is limited evidence before the Tribunal to make any findings about the nature of their relationship during 2015, and no evidence about the status of his previous relationship at that time. It is not of itself inconsistent with being in a genuine partner relationship that a party to that relationship is seeing/courting another person.  The present application was not made until January 2017 and therefore the Tribunal’s assessment of this relationship is from that point in time.  Above, the Tribunal has accepted that the parties were living together from January 2016.  It may have been the circumstances of the earlier sponsorship that led the delegate to have concerns about the nature and genuineness of this relationship.  However, by the time of the Tribunal’s assessment, some 6 years and two children later, this is not of concern to the Tribunal. 

26. Therefore, on the basis of the findings above the Tribunal is satisfied, the applicant and sponsor had, at time of application and continue to have now, a mutual commitment to shared life to the exclusion of others; were and are in a genuine and continuing relationship and were, and are, living together and are not related by family, therefore the requirements of s 5CB(2)(a)-(c) and 5CB(2)(d) were met at time of application and s 5F(2)(b)-(d) are met at time of this decision.

27. The applicant meets cl 820.211(2)(a) and cl 820.221(1)(a).  It is satisfied that the additional sub criteria are met, in that the applicant is sponsored by an Australia permanent resident and was the holder of a substantive visa at time of application.  The Statutory Declaration of the sponsor dated December 2021 indicates he continues to support the application therefore the Tribunal is satisfied that cl.820.221(4) is met.

28. The Tribunal finds cl.820.211 and 820.221 are met.

29. As the applicant and sponsor have married since the application was made and have been found to be in a married relationship at time of decision, the Tribunal considers that the additional criteria in r.2.03A (being a time of decision requirement) do not apply to this application.

30. 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

31. 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

    Meena Sripathy
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.09A     De 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).

    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).