Tran (Migration)

[2023] AATA 4219

Tran (Migration) [2023] AATA 4219 (30 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Thi Le Lieu Tran
Ms Tran Thao Vy Le

REPRESENTATIVE:  Mrs Kim Uyen Pham

CASE NUMBER:  1905967

HOME AFFAIRS REFERENCE(S):          BCC2018/272108

MEMBER:Christine Kannis

DATE:30 September 2023

PLACE OF DECISION:  Perth

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(1)(a) of Schedule 2 to the Regulations

Statement made on 30 September 2023 at 1:57pm

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 – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 820.211, 820.221, 820.321

CASES
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 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).

2. The first named applicant (the applicant) applied for the visa on 17 January 2018 on the basis of her relationship with her sponsor, Mr Kenny Vuong. 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 applicant did not satisfy cl 820.211(2)(a) because the delegate was not satisfied that she was the de facto partner or spouse of the sponsor as defined under the Act.

4. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

5. No hearing was held in this case because the Tribunal determined it was able to make a favourable decision on the materials before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. In accordance with the President’s Direction Conducting Migration and Refugee Reviews (paragraph 8.2), the Tribunal has restricted its review to the particular criterion on which the primary decision was made. 

8. The issue in the present case is whether the relationship between the applicant and the sponsor meets the definition of ‘spouse’ in s 5F of the Act.

9. Section 5F of the Act 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 husband and wife 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 as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship, the nature of the household and the persons’ 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 r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

10. 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.

    Are the parties validly married?

11. A Marriage Certificate showing the parties were married on 2 January 2018 at Cabramatta NSW was provided. On the basis of the written evidence before it, and in the absence of any evidence to the contrary, the Tribunal concludes that the marriage satisfies the requirements for a valid marriage for the purpose of the Act as required by s 5F(2)(a). 

    Background

12. The sponsor is an Australian citizen. The applicant is a Vietnamese national. 

13. The secondary applicant is the applicant’s daughter from a previous relationship.

14. The parties claim to have first met on 29 April 2017 and committed to a shared life together to the exclusion of all others on 10 December 2017. The parties had their wedding reception on 10 December 2017 and registered their marriage on 2 January 2018. 

15. The Tribunal considered the evidence against the reg 1.15A(3) factors.

16. Prior to a scheduled hearing, the applicant provided additional documents including but not limited to bank statements, taxation returns, evidence of communication, statutory declarations and photographs. The Tribunal had significantly more evidence before it than was available to the delegate.

    Are the other requirements for a spouse relationship met?

    Financial aspects

17. The Tribunal considered the evidence in relation to the financial aspects including joint ownership of assets, joint liabilities, any legal obligations owed to the other party, the extent of pooling of financial resources and any sharing of day-to-day household expenses.

18. In statutory declarations dated 16 January 2018, the applicant and the sponsor each stated that they share finances. They stated that they have a Commonwealth Bank account in their joint names which is used for grocery shopping and daily expenses. The parties stated that they pay their rent in cash and pay in cash when they shop at Asian grocery shops. No evidence was provided to substantiate these claims. The parties stated that the applicant has savings from Vietnam of around $20,000 for her expenses and the sponsor earns around $470 per week from his work. The parties each stated that they rent a granny flat from the applicant’s sister (My) for $100 per week.

19. At the time of application, the parties did not provide any documentary evidence to substantiate the evidence provided in their statutory declarations dated 16 January 2018 regarding the financial aspects of their relationship.

20. In statutory declarations dated 18 September 2019, the applicant and sponsor each stated that they share their finances and they each provided a breakdown of their family budget including $100 per week for rent, $100 for food, monthly costs of $180 for phone and $73 for health insurance. They stated that they pay their expenses in cash. They stated that since July 2018, the applicant has been working and her wages are paid directly into their joint bank account. They stated that they closed their Commonwealth Bank joint account and on 20 March 2019, they opened a St. George Bank account in their joint names. They stated that the applicant’s wages and the sponsor’s newstart allowance are paid into this joint account which is used to pay daily expenses.

21. The evidence before the  Tribunal included the St. George joint bank account statements for  the periods 20 March 2019 to 19 September 2019, 2 December 2020 to 1 April 2021, 2 March 2022 to 1 April 2023, 2 April 2023 to 1 May 2023, 2 May 2023 to 1 June 2023, 2 June to 1 August 2023 and 2 August  2023 to 1 September 2023. The statements show credit transactions in relation to the applicant’s wages and the sponsor’s Centrelink jobseeker deposits and the debit transactions which  include payments for transport, groceries, Medibank health insurance, Vodafone and food purchases.

22. There is no evidence before the Tribunal that, at the time of application or at the time of this decision, the applicant and the sponsor jointly owned any real estate or other major assets or that they have any joint liabilities and the Tribunal so finds.

23. The Tribunal is satisfied that the parties have pooled their financial resources and shared day-to-day financial responsibilities during the relationship. The Tribunal decided that this was an indicator of a genuine and continuing spousal relationship at the time of application and at the time of decision.

    Nature of the household

24. The Tribunal considered the evidence in relation to the nature of the household including any joint responsibility for care and support of children, the parties' living arrangements and any sharing of housework.

25. At the time of application, the applicant provided correspondence addressed to her at Rawson Street Lidcombe NSW 2141 (Rawson Street) dated from November 2017 to November 2018. Correspondence addressed to the sponsor at Rawson Street dated 15 December 2017 was provided. The applicant moved to this address in January 2017. The sponsor has been living at this address since after their wedding in December 2017.

26. In statutory declarations dated 16 January 2018, the applicant and the sponsor each stated that they share household chores. They stated that the sponsor cooks and the applicant   cleans the dishes and does the washing. They stated that they clean their home together, the sponsor takes the rubbish out and mows the lawn and the secondary applicant irons their clothes.

27. In their statutory declarations dated 18 September 2019, the applicant and sponsor stated that the sponsor moved in with the applicant at her sister’s granny flat at Rawson Street after their wedding in December 2017. They stated that they do not have utilities bills as they are in the applicant’s sister’s name. The parties each stated that they and the secondary applicant share household responsibilities and take turns cleaning the house, cooking and doing laundry. The sponsor takes the rubbish out.

28. Correspondence addressed to the applicant and sponsor individually at Rawson Street in 2019 and 2020 was provided.

29. Documentary evidence reflecting the parties’ stated address included joint Vodafone telephone bills, St. George joint bank account statements, Medibank health insurance correspondence, the applicant’s superannuation statement, the applicant’s 2019 and 2020 tax assessments and the sponsor’s 2018 and 2019 taxation assessments.

30. The Tribunal accepts that the parties have lived at the same residential address since the time of application. The Tribunal finds that the evidence presented relating to the parties’ residential address and the nature of the household was an indicator of a genuine and continuing spousal relationship at the time of application and at the time of decision.

    Social aspects of the relationship

31. The Tribunal considered the evidence in relation to the social aspects of the relationship including 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 the persons plan and undertake joint social activities.

32. In statutory declarations dated 16 January 2018, the applicant and the sponsor each stated that their wedding reception was attended by family members and friends. They each stated that their friends invite them out for dinner and drinks together as a couple. They each stated that they eat out together as a couple, go shopping and have coffee in the city, visit the applicant’s sister’s home together and visit their friends together.

33. In their statutory declarations dated 18 September 2019, the applicant and sponsor each stated that they socialise as a couple, go to the city together and attend family gatherings together. They stated that they spent time with the applicant’s siblings when they visited Australia in 2019.

34. At the time of application, the applicant provided two statutory declarations and photographs taken with friends and family members. The statutory declarations were made on 2 January 2018 by Mr Franco Delalion and Ms Thi Kim Hoang. Both declarants indicated that they regularly spend time with the parties as a couple and each provided reasons for their belief that the parties’ relationship is genuine and continuing.The photographs included photographs of the parties on their wedding day, attending the applicant’s father’s funeral in Vietnam in February 2018 and at social occasions with family and friends.

35. The evidence before the Tribunal included two additional statutory declarations and a written statement. A statutory declaration dated 11August 2023 made by Ms Quynh Anh Nguyen was provided. Ms Nguyen had only known the parties for 4 months and said she works with the applicant and she sees the parties together at least twice a week when the sponsor picks up the applicant. She said she also occasionally has dinner with them. Her reasons for her belief that the parties’ relationship id genuine and continuing include that they are affectionate towards each other and that they have plans for a future together. Given the brief period of time Ms Nguyen has known the parties, the Tribunal gives this evidence limited weight.

36. A statutory declaration dated 12 August 2023 made by Ms Thi Hong Doai was provided.  Ms Doai has known the parties for several years and she regularly spends time socialising with them. Her reasons for her belief that the parties’ relationship is genuine and continuing include that they have a lot in common, they look very happy when they are together and that the second named applicant treats the sponsor as her own father. The Tribunal gives this evidence some weight.

37. A written statement dated 27 April 2023 made by Mr Thich Bon Dieu was provided. Mr Dieu stated that the parties are members of the Buddhist community and they have been attending the temple as active members for a long time and that they volunteer on special occasions. He stated that he believed the parties are a genuine couple and said this belief was based on what he had witnessed including that they take care of each other and have similar interests. The Tribunal gives this evidence some weight.

38. Prior to a scheduled hearing, numerous photographs of the applicant and sponsor with family and friends both at home and out in Sydney, celebrating birthdays and singing karaoke were provided.

39. The applicant’s Individual Taxation Return for the 2020 financial year was provided. The applicant indicated that the sponsor was her spouse during the 2020 financial year.

40. The sponsor’s Individual Taxation Returns for the 2018 and 2019 financial years were provided. The sponsor indicated that the applicant was his spouse during each relevant financial year.

41. Based on the evidence, the Tribunal was satisfied that at the time of application the parties represented themselves to other people, including family and friends, as being in a spousal  relationship with each other. Further, the Tribunal decided that at the time of decision the parties continue to represent themselves to family and friends as being in a spousal relationship with each other.

    The nature of the parties’ commitment

42. The Tribunal considered the nature of the persons’ commitment to each other including the duration of the 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.

43. In statutory declarations dated 16 January 2018, the applicant and the sponsor each stated that they are very committed to their marriage. In her statutory declaration the applicant said she loves the sponsor very much and feels he genuinely loves and care for her. They each stated that they provide each other with emotional support and are very compatible. They each stated that they have many things in common including that they like to eat and cook food together and go shopping together. They said they can talk to each other about any topic for a long period of time and often talk to each other after the sponsor comes home from work. The parties each stated that they want to purchase a home together and if possible, have children together and build a family together.

44. Evidence that the parties had joint private health insurance in 2019 was provided.

45. In their statutory declarations of 18 September 2019, the applicant and sponsor each stated that they are very committed in their marriage and love each other. The applicant stated they are very happy in their marriage. They stated that they plan to save and purchase a property together. The couple have been married and lived together for nearly 6 years.

46. The documentary evidence provided includes joint Vodafone telephone bills showing calls between each other for 8 April to 7 May 2019, 8 September to 7 October 2019, 8 November to 7 December 2019, 8 June to 7 July 2020, 8 July to 7 August 2020, 8 August to 7 September 2020, 8 March to 7 April 2021, 8 April to 7 May 2021 and 8 May to 7 June 2021.

    Conclusion

47. The Tribunal finds that at the time of application and at the time of decision the parties were and remain in a committed long-term relationship. In making this determination the Tribunal places weight on the length of the relationship and notes that the parties have been married for nearly 6 years. 

48. Having regard to all of the evidence, the Tribunal concludes as follows:

    • The parties are married to each other under a marriage that is valid for the purposes of the Act;
    • They are not living separately and apart on a permanent basis;
    • They have a mutual commitment to a shared life together to the exclusion of others; and
    • The relationship is genuine and continuing.

49. 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 the time of this decision.

50. Therefore, the applicant meets cl 820.211(2)(a) and cl 820.221(1)(a).

    Other relevant information

51. The second named applicant is 23 years old and is the child of the applicant. As the Tribunal has found that the applicant meets the criteria in cl 820.211(1) and cl 820.221(1)(a), the ability of the second named applicant to satisfy the secondary criteria in cl 820.321 should also be reconsidered.

52. Given the findings above, the appropriate course is to remit the applications for the visas to the Minister to consider the remaining criteria for a Subclass 820 visa.

    DECISION

53. 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(1)(a) of Schedule 2 to the Regulations

    Christine Kannis
    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).