TRAN (Migration)

[2024] AATA 681

TRAN (Migration) [2024] AATA 681 (26 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs My Hang Tran

REPRESENTATIVE:  Dr Le Ha Uyen Nguyen (MARN: 1384072)

CASE NUMBER:  1832926

HOME AFFAIRS REFERENCE(S):          BCC2017/4449830

MEMBER:Jennifer Cripps Watts

DATE:26 February 2024

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(2) of Schedule 2 to the Regulations; and

·cl 820.221 of Schedule 2 to the Regulations

Statement made on 26 February 2024 at 5:51pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – financial aspects – nature of the household – social aspects – nature of the parties’ commitment – non-disclosure certificate – prior criminal conviction – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), rr 1.15A, 1.20KC; Schedule 2, cls 820.211, 820.221

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 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 24 November 2017 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 (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) of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant and sponsor (the parties) were in a married relationship as it is described in s 5F of the Act.

4. The parties appeared before a different Tribunal member on 13 April 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Brighton Xue, Trinh Phung Thi Pham and the sponsor, Winston Edwards Tang. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and Vietnamese and English languages.

5. The Tribunal member was not able to finalise the matter after the April 2023 hearing and, on 20 December 2023, the case was re-allocated to the current member.  A transcript of the proceedings in matter number 1832926 was ordered and a copy is on the Tribunal file. 

6. The parties’ representative attended the Tribunal hearing in April 2023.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant was in a genuine married relationship with the sponsor at the time of application, and whether the parties continue to be in a married relationship at the time of the Tribunal’s decision:  cl 820.211(2)(a) and cl 820.221.

   Whether the parties are in a spouse or de facto relationship

9. 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.

10. ‘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).

    Background

11. On 22 October 2016, the applicant arrived in Australia holding a visitor that had been granted two days earlier.  The parties met at a Auburn Chinese Restaurant Weiyang.  The occasion was the sponsor’s birthday, and the parties were each there with friends they had in common.  With reference to the parties’ relationship statements submitted in support of the visa application, the sponsor thought the applicant was interesting and asked for her number.  He called her the following day and invited her to lunch.  They saw a bit of each other before the applicant returned to Vietnam and kept in contact until the applicant travelled back to Australia about six months later, on 2 June 2016.

12. On 27 August 2017, a couple of days before the applicant returned to Vietnam, the sponsor proposed marriage to her.  The applicant told him she needed some time to think about it and to talk to her daughters.  The applicant came back to Australia on 20 September 2017 and the parties decided to commit to a long term future together.  They made the necessary plans and married each other on 29 October 2017 and applied for the partner visa that is the subject of this review on 24 November 2017.

13. The parties had both been married before.  The sponsor from 1986 to 2005; he is divorced.  The applicant was married from 1978 to 1993.  They are both divorced and each has two children from their earlier marriage.

14. Since marrying each other in October 2017, the parties have provided evidence that they have resided together in Redfern.

    Are the parties validly married?

15. 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 on 29 October 2017 and have provided a copy of their marriage certificate. 

16. 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) of the Act.

    Are the other requirements for a spouse relationship met?

17. The Tribunal has relied on information in both the Department and Tribunal files, and also the transcribed oral evidence that was given at the Tribunal hearing in April 2023.

18. In forming an opinion about the matters in s 5F(2) of the Act, set out in paragraph 10 above, the Tribunal must have regard to all of the circumstances of the relationship. This includes evidence of the financial and social aspects, 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. The Tribunal must make findings against each of the subregulations 1.15(3)(a)-(d).

19. The parties met each other in 2016, got married in October 2017 and lodged the partner visa application that is the subject of this review in November 2017.  The subclass 820 visa was refused on 1 November 2018.  The applicant applied to the Tribunal for review of the decision on 8 November 2018.  The matter was first constituted to a member in December 2022.  The Tribunal hearing was in April 2023.  Unfortunately the previous member was unable to finalise the review and the matter was reconstituted in December 2023.  It has now been over six years since the visa application was lodged and, for the following reasons, the Tribunal is satisfied that the parties continue, at the time of this decision, to be in a genuine married relationship.

20. Since the time of application, the parties have provided a significant amount of additional documentary evidence. 

    The financial aspects of the relationship; reg 1.15A(3)(a)

21. The Tribunal has looked at whether the parties have any joint ownership of assets or joint liabilities; the extent of pooling of their financial resources; any legal obligations owed to the other party; and any sharing of day-to-day household expenses.

22. The parties have a joint account and also their own personal bank accounts.  The sponsor said most of his ‘salaries’ are paid and deposited into the joint account, but that he also earns some cash income from massage and he deposits that money into his personal account to save for future medical expenses because he is ‘getting old’.  The applicant has her part of her salary deposited into her individual account with ANZ to spend on herself for things like clothes.  The applicant, who has two part time jobs, also deposits some of her salary into the joint account.  The accounts are used regularly.  The parties, who each have children from previous marriages, nominate each other in their wills as 50 percent beneficiaries.

23. Neither jointly nor individually do the parties have any liabilities or loans.  They do not have a mortgage.  They have a joint bankcard with a limit of approximately $15,000.  In 2017, the parties shared the cost of their wedding and provided a receipt for a cash payment of $7,813.

24. The Tribunal is satisfied in the parties’ circumstances, where they appear to be of limited means and living in rented accommodation, that they have no assets to speak of, nor any significant liabilities, and that they pool and share their resources in a manner commensurate with might reasonably be expected of a mature married couple.

    Nature of the Household

25. The Tribunal has had regard to any joint responsibilities the parties have relating to the living arrangements and sharing in the care of family members and housework.

26. There is a significant amount of correspondence addressed to the parties individually and jointly at the address in Redfern where they have lived together since 2017.  They have joint BUPA health membership.  The parties have declared their relationship to the Department of Housing in New South Wales.

27. The applicant said that generally she is responsible for cooking and that her husband does the food preparation and that he does the vacuuming.

    Social aspects of the relationship

28. The Tribunal has had regard to whether the parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which they plan and undertake joint social activities.

29. The parties have taken two trips together overseas.  Once in 2018 to China for the Qingming Festival, which is the tomb-sweeping festival.  They went to the tomb of the sponsor’s parents.  The second trip they took together was in 2019, and said for that trip they rendezvoused with their children in Thailand for a joint family holiday.  In March 2022, the parties took a cruise together.

30. The parties have provided a large number of captioned photographs of themselves together and with friend and family, which indicates they plan and undertake social events together.  This is supported by a large number of Form 888 statutory declarations from friends and family in support of the parties’ claim to be in a genuine and continuing relationship.  The photographic and written evidence, particularly when considered together, suggests there is a high degree of recognition of the relationship in the community.

    Nature of the parties’ commitment to each other

31. Matters considered by the Tribunal include the duration of the parties’ relationship; the length of time they have lived together; the degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

32. The parties are an older couple who have been married and living together for over six years.  At the Tribunal hearing they were each able to spontaneously give oral evidence about the health conditions of the other and the medications they take.  The sponsor said his wife sometimes has stomach trouble and that she takes medication for her triglyceride, or diabetes.  The applicant said her husband has a thyroid problem for which he takes prescription medication and that he attends his doctor every three months for a vitamin B12 injection.  The applicant said that sometimes the sponsor gets depressed, gets cramps in his leg and his whole body shakes, so she occasionally takes time off work to look after him.  The sponsor, when his wife gets home from work, after a particularly exhausting day, gives her a massage.  They ‘reserve’ every Saturday when they are not working to go out walking together on the waterfront or go for Yum Cha.

33. The applicant said that it is her dream to establish a Vietnamese bread shop.  The sponsor, who was born in 1956, said that he is planning to retire but that this will give him spare time to help his wife set up the break shop or ‘snack restaurant’ to help her.

34. The witnesses who gave oral evidence at the hearing gave generally consistent evidence about the relationship and social occasions they’ve attended together, to that of the sponsor and applicant.

    Non-Disclosure Certificate (NDC) issued under s 375A of the Act

35. A NDC issued under s 375A of the Act, signed by a delegate of the Minister for Home Affairs and Secretary of the Department of Home Affairs (position number included) and dated 4 July 2019, is on the applicant’s Department file.  An electronic copy of the Department file, BCC2017/4449830, is held by the Tribunal in relation to this case.

36. The NDC identifies documents, TRIM Reference numbers ADD2019/3835172 and ADD2019/3835014 of file BCC2017/4449830, which is the Department file relating to the applicant’s partner visa application that is the subject of this review.  In the NDC it is stated that it would be contrary to the public interest to disclose the information in the specified documents because ‘the information contained in these records relates to allegations made by a third party who requested protection of their identity as the source of the information.  Disclosure to the persons subject of those allegations, or to other parties, may expose the identity of the source’.

37. Pursuant to s 375A(2)(b) of the Act, the information can only be disclosed to the AAT and the AAT must do everything necessary to ensure the information is not disclosed to any other person.  However, the Tribunal may provide the gist of the information to an applicant on review for their comment or response.

38. At the beginning of the hearing in April 2023, the previous member raised with the applicant that the Department had placed the NDC on the file.  A copy was given to the applicant at the Tribunal hearing for her to comment on the validity. 

39. The Tribunal is satisfied that the previous member put the adverse information to the applicant in accordance with the statutory obligation under s 359AA of the Act, and that the applicant was invited to respond at the hearing or after the hearing.  The applicant at first said she wished to respond in writing, then changed her mind and elected to respond to the information at the hearing and, in summary, provided the following information in her oral evidence:

    a.She was charged and convicted of corruption and spent nearly 11 years in prison in Vietnam from about 1999.

    b.The applicant said she was wrongly accused of the crime because her signature appeared on a document at the place she worked, a bank.

    c.Her manager asked her to sign something and she did so because she could not refuse his ‘order’, described as a ‘cashier’s order’.

    d.She did not declare the matter to the Department because her ‘sentence was already completed, so I (she) didn’t tell’.

40. At the conclusion of the Tribunal hearing, the previous member checked with the applicant whether she still wanted to provide a written response and the applicant confirmed that she no longer wished to do so.

41. The Tribunal must decide if the parties are in a genuine and continuing marriage.  Whether or not the applicant declared a criminal conviction in the application is not considered to be a material issue on review.  The information about the applicant’s criminal history has not been relied on in making a decision about the substantive issue on review, that is, the married relationship.

    Conclusion

42. The Tribunal has considered all the circumstances in reg 1.15(3)(a)-(d) and any other relevant matters and is satisfied that the parties share their finances and household, that they represent themselves socially as a married couple and that they have a lasting and long term commitment to a future together as a married couple.

43. For these reasons, the Tribunal is satisfied that the parties have a mutual commitment to a shared life to the exclusion of all others; the relationship is genuine and continuing; they live together and not separately or apart on a permanent basis; and that the applicant therefore meets the requirements of s 5(2)(b)-(d) of the Act.

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

45. Therefore the applicant meets cl 820.211(2)(a).  Further, on the evidence, the Tribunal is satisfied the applicant is sponsored and that she held a substantive visa when the application was made and that she therefore also meets cl 820.211(2)(c) and cl 820.211(d).

46. The applicant must also meet the time of decision criteria 820.221, which requires in this case, relevantly and in summary, that the applicant continues to meet cl 820.211(2)(a); and cl 820.221(4) which requires that the sponsorship has been approved by the Minister and is still in force and the sponsor has consented to the disclosure by the Department of any conviction of the sponsor for a relevant offence within the meaning of reg 1.20KC(2).

47. The Tribunal finds that the applicant meets cl 820.211(2) and cl 820.221 of Schedule 2 to the Regulations.

48. 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

49. 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(2) of Schedule 2 to the Regulations; and

    ·cl 820.221 of Schedule 2 to the Regulations

    Jennifer Cripps Watts
    Senior 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).