Tran (Migration) - [2023] AATA 3870

Tran (Migration) [2023] AATA 3870 (14 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Kim Tham Tran
Miss Trieu Vy Huynh
Miss Y Nhi Huynh
REPRESENTATIVE:  Ms Thu Ha Nguyen (MARN: 0747622)
CASE NUMBER:  2005112
HOME AFFAIRS REFERENCE(S):          BCC2018/3523855
MEMBER:Cheryl Cartwright
DATE:14 November 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211(2)(a) of Schedule 2 to the Regulations
·cl 820.221 of Schedule 2 to the Regulations

Statement made on 14 November 2023 at 4:00pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – validly married – financial, household and social aspects of relationship and nature of commitment – limited evidence at time of application – met while applicant still married to first husband and rapid development of relationship – duration of relationship, travel and interactions with each other’s family – joint finances and purchase of property – consistent oral evidence given independently – members of family unit – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 820.211(2)(a), 820.221
CASES
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant (the applicant) applied for the visa on 17 September 2018 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.
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.211(2)(a) because there was insufficient evidence to demonstrate that the applicant is the spouse or de facto partner of the sponsor, as defined under sections 5F and 5CB of the Migration Act.
The applicants appeared before the Tribunal on 14 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor Phu Hung Vo, and a daughter of the applicant, Y Nhi Huynh. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicants were represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tran (Migration)

Details

AGLC: Tran (Migration) [2023] AATA 3870
Case: [2023] AATA 3870
Decision Date: 14 November 2023

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by the applicant and sponsored by an Australian citizen. The central dispute revolved around whether the applicant and sponsor were in a genuine and continuing married relationship for the purposes of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth) at the time of the visa application and the decision under review. The Tribunal was required to determine if the parties met the criteria for a spouse relationship, considering all aspects of their relationship as mandated by the Act and Regulations.

The legal issues before the Tribunal were whether the applicant and sponsor were validly married and, if so, whether they met the other requirements for a spouse relationship as defined by section 5F of the Act. This involved assessing the evidence in relation to the financial and household aspects of their relationship, their social interactions, and the nature of their commitment to each other, as outlined in regulation 1.15A(3). The Tribunal also had to consider the relevance and weight of evidence pertaining to events that occurred subsequent to the visa application date.

The Tribunal reasoned that evidence of events subsequent to the visa application could logically demonstrate facts relevant to the existence or non-existence of the claimed marriage relationship at the time of application. Applying this principle, and having regard to the evidence presented, including the parties' meeting, their subsequent cohabitation, marriage, and joint purchase of property, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that the applicant met the criteria under cl 820.211(2)(a) and cl 820.221 of Schedule 2 to the Regulations.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In deciding this matter, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application and the date of the delegate’s decision. Background The applicant and sponsor met in August 2017 at the home of the applicant’s then husband’s sister who is a friend of the sponsor. The applicant was staying at her sister-in-law’s home during her visit to Australia. She described her sister-in-law as the ‘guardian’ for her children who are studying in Australia. The applicant was married to her first husband, the father of her children, at the time of this meeting but she told the Tribunal that the marriage had been unhappy. Her first husband had not travelled to Australia with her at that time. They were formally divorced in January 2018. The applicant and sponsor stayed in touch after their meeting and in June 2018 they decided to get married, moving to a rental home together in July 2018. They were married in August 2018 and lodged an application for a partner visa (820) in September 2018. In July 2021 the parties bought a home together in Oakden Street St Albans. They live there with the applicant’s two daughters from her previous marriage.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. A copy of the sponsor’s Australian citizenship certificate dated 30 October 2017 is on the Department’s file. ‘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 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? 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 at Hoppers Crossing on 18 April 2018. A copy of the marriage certificate is on the Department’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?

Evidence

Evidence Before The Court

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 the applicant and the sponsor are spouses for the purposes of the Act. 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. In deciding this matter, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application and the date of the delegate’s decision. Background The applicant and sponsor met in August 2017 at the home of the applicant’s then husband’s sister who is a friend of the sponsor. The applicant was staying at her sister-in-law’s home during her visit to Australia. She described her sister-in-law as the ‘guardian’ for her children who are studying in Australia. The applicant was married to her first husband, the father of her children, at the time of this meeting but she told the Tribunal that the marriage had been unhappy. Her first husband had not travelled to Australia with her at that time. They were formally divorced in January 2018. The applicant and sponsor stayed in touch after their meeting and in June 2018 they decided to get married, moving to a rental home together in July 2018. They were married in August 2018 and lodged an application for a partner visa (820) in September 2018. In July 2021 the parties bought a home together in Oakden Street St Albans. They live there with the applicant’s two daughters from her previous marriage.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. A copy of the sponsor’s Australian citizenship certificate dated 30 October 2017 is on the Department’s file. ‘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 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?

Decision

Reasons for decision

In those circumstances and given the findings above of the Tribunal in relation to the primary visa applicant, is appropriate for the Tribunal to remit the visa application of the secondary visa applicants to the Minister for reconsideration on the basis of the direction given for the primary visa applicant so the secondary visa applications can be assessed against the secondary criteria.DECISION The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:·cl 820.211(2)(a) of Schedule 2 to the Regulations·cl 820.221 of Schedule 2 to the RegulationsCheryl CartwrightMemberATTACHMENT - Extract from Migration Regulations 19941.15A 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).

Ratio Decidendi

Legal Principle Established

The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:·cl 820.211(2)(a) of Schedule 2 to the Regulations·cl 820.221 of Schedule 2 to the RegulationsCheryl CartwrightMemberATTACHMENT - Extract from Migration Regulations 19941.15A 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).