Tran (Migration) - [2023] AATA 3721

Tran (Migration) [2023] AATA 3721 (22 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Van Chau Tran
VISA APPLICANTS:  Ms Thi Min Nguyen
Mr Quang Truong Nguyen
REPRESENTATIVE:  Dr Ngo Tung Bao (MARN: 0006620)
CASE NUMBER:  2005147
DIBP REFERENCE(S):  BCC2019/1375070
MEMBER:Brygyda Maiden
DATE:22 October 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.

Statement made on 22 October 2023 at 1:06pm
CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – review applicant not knowing the name of the venue of the parties’ wedding party – concern about the genuineness of the parties’ relationship – little evidence to suggest that the parties continue to represent themselves to other people as being married to each other – no evidence of the parties living together when the review applicant travels to Vietnam – genuine concerns about the review applicant being a credible witness –– not satisfied that the review and visa applicant have a commitment to each other consistent with a genuine and continuing relationship at the time of application or of this decision–– decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, r 1.15, Schedule 2, cls 309.211, 309.221
CASES
Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139
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 on 9 March 2020 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (Cth) (the “Act”).
The first named visa applicant, a 45-year-old Vietnamese national (the “visa applicant”) and the secondary visa applicant, a 20-year-old Vietnamese national (and the son of the visa applicant) applied for the visa on 18 March 2019 on the basis of their relationship with their 69‑year‑old 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 (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 only satisfy the secondary criteria.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.211(2) of the Regulations. The delegate considered that all the information and evidence provided in support of the application including the matters in reg 1.15A were not sufficient 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, Australian permanent resident or eligible New Zealand citizen.
The review applicant applied to the Tribunal for review on 15 March 2020 and attached a copy…

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 3721
Case: [2023] AATA 3721
Decision Date: 22 October 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application for a Partner (Provisional) (Class UF) visa, subclass 309. The review applicant, an Australian citizen, sought to have a visa granted to his spouse. The Tribunal was required to determine whether the visa applicant was the spouse or de facto partner of the review applicant, as defined by the Migration Act 1958 (Cth) (the Act).

The central legal issue was whether the parties had a genuine and continuing commitment to each other consistent with a married relationship at the time of the visa application and at the time of the Tribunal's decision. This required the Tribunal to assess various aspects of the relationship, including financial and social elements, household arrangements, and the nature of their commitment, as outlined in section 5F(2) of the Act and regulation 1.15A(3) of the Migration Regulations 1994. The Tribunal also considered the credibility of the review applicant as a witness, noting a representative's comment about his poor memory, though no medical evidence was provided to support this.

The Tribunal found that while the parties had a marriage ceremony in Vietnam and registered their marriage, there were significant concerns regarding the genuineness and continuing nature of their relationship. Specifically, the Tribunal noted a lack of evidence that the parties continued to present themselves to others as married, and no evidence of them living together when the visa applicant travelled to Vietnam. The Tribunal also expressed concern about the review applicant's credibility as a witness. Ultimately, the Tribunal was not satisfied that the parties had a mutual commitment to a shared life as a married couple to the exclusion of all others, nor that the relationship was genuine and continuing, or that they lived together.

Consequently, the Tribunal affirmed the decision not to grant the Partner (Provisional) (Class UF) visa, finding that the visa applicants did not satisfy the criteria for its grant.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the visa applicant is the spouse or de facto partner, as defined in the Act, of the review applicant. At the very end of the hearing, the representative stated that he had difficulty working with the review applicant due to his poor memory. Sometimes he would say one thing and then he would say another. No medical evidence has been submitted in relation to any memory issues pertaining to the review applicant, and the Tribunal gives the representative’s claim little weight.Are the parties in a spouse or de facto relationship? 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 certificate of Australian citizenship and the bio pages of his Australian passport appear on the Department 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 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? The visa applicant’s “Letter of report on the marital relationship” translated on 18 March 2019 on the Department file states that the parties met through the visa applicant’s former sister’s (Ms Nguyen Thi Tan) family. The review applicant had been a family friend. He attended a party at Ms Nguyen Thi Tan’s house and saw a photograph of the visa applicant. Ms Nguyen Thi Tan introduced the parties. The review applicant came to Vietnam with friends to visit relatives and to meet the visa applicant for the first time (a copy of the review applicant’s passport indicates he entered Vietnam on 2 April 2018 and departed on 19 April 2018). The visa applicant took a flight on 2 April 2018 from Hai Phong City to Ho Chi Minh City in order to meet the review applicant at Tan Son Nhat Airport. The parties had a meal at the visa applicant’s aunt’s house where she was living on 5 April 2018. On 6 April 2018, the review applicant invited her “aunt family” and the visa applicant to introduce the visa applicant to his relatives as his girlfriend. The review applicant returned to Australia on 19 April 2018 and the parties kept in touch by Viber and the parties feelings for each other grew. On 6 September 2018, the review applicant and his son arrived in Vietnam to prepare for the parties’ wedding. The visa applicant together with the review applicant’s two younger brothers went to Tan Son Nhat Airport to collect them. The parties celebrated their wedding on 15 September 2018 at O Cap restaurant “belonging to I Cap Tourism and Event Services Co LTD” (Vung Tau City, Vietnam) (and the photographs submitted of the wedding party have a narration which indicates that it occurred at O Cap restaurant, on 15 September 2018). The visa applicant’s mother, her children and sisters and brother and relatives attended (at the hearing the review applicant also told the Tribunal that his daughter did not attend as she was doing a course for nursing and was busy). The review applicant’s son and his sisters, brother and relatives also attended. His mother was too elderly to come and his siblings who resided in America and Canada also did not come but called to give the parties their well wishes. After the parties’ wedding ceremony, the parties lived in the review applicant’s brother’s house in Vung Tau. On 6 October 2018, the parties flew to Hai Phong City to visit the review applicant’s family and also registered their marriage certificate there. The certificate was issued on 11 October 2018. On 26 October 2018, the review applicant returned to Australia, but kept in touch with the visa applicant daily through Viber.

Decision

Reasons for decision

For the reasons above, the visa applicants do not satisfy the criteria for the grant of the visas.DECISION The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.Brygyda MaidenMemberATTACHMENT - Extract from Migration Regulations 19941.15ASpouse(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).

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.