Tran (Migration) - [2023] AATA 2980

Tran (Migration) [2023] AATA 2980 (29 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Thi Thanh Thuy Tran
REPRESENTATIVE:  Mr Michael Cai
CASE NUMBER:  2101358
HOME AFFAIRS REFERENCE(S):          BCC2020/1175301
MEMBER:Tegen Downes
DATE:29 August 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 29 August 2023 at 11:03am
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship at time of application – validly married – limited and inconsistent evidence of financial, household and social aspects of relationship – mutual commitment – applicant’s intention genuine but not sponsor’s – ongoing relationship with another woman – relationship ceased – claim of family violence requires genuine relationship first – mistreatment accepted but no finding within meaning of Act made – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cl 820.211(2)(a), 820.221(3)
CASES
Ally v MIAC [2008] FCAFC 49
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 applicant a Partner (Temporary) (Class UK) visa under section 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 15 March 2020 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 delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2) of Schedule 2 to the Regulations. The delegate considered that the evidence and information provided was not sufficient to demonstrate that the applicant was the ‘spouse’ of the sponsor, within the meaning of s 5F of the Act.
The applicant appeared before the Tribunal on 27 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing via MS Teams. The representative was only appointed one week before the hearing. The applicant had multiple previous representatives.
The applicant was given the opportunity to provide further information, evidence and submissions following the hearing. This material was received and considered by the Tribunal.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
ISSUES AND LAW
This review application relates to an application for a provisional partner visa to enable the applicant to remain in Australia on a temporary basis.
The first issue in this…

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 2980
Case: [2023] AATA 2980
Decision Date: 29 August 2023

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa by a 65-year-old woman from Vietnam, who claimed to be in a married relationship with her sponsor, a 77-year-old Australian citizen. The applicant and sponsor met in late 2019, married in February 2020, and the visa application was lodged a month later. The applicant alleged the relationship ended in May 2021 when the sponsor evicted her, and that she suffered family violence for approximately 12 months prior to this. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the criteria for the visa, specifically whether the relationship was genuine and continuing at the time of application, and if not, whether the exception for family violence applied.

The Tribunal was tasked with assessing the evidence regarding the financial, household, and social aspects of the relationship, as well as the mutual commitment between the applicant and sponsor. The primary legal issue was whether the sponsor possessed the requisite subjective intention of a mutual commitment to a shared life as a married couple, to the exclusion of all others, at the time the visa application was made. The Tribunal also considered whether the applicant's claims of mistreatment constituted family violence within the meaning of the Act, which would be relevant if the relationship had ceased.

In its reasoning, the Tribunal found the evidence presented to be limited and inconsistent. While accepting the applicant's evidence that, from her perspective, the relationship was genuine and that she had been mistreated, the Tribunal concluded that the sponsor did not demonstrate the necessary mutual commitment. The sponsor's conduct, including an ongoing relationship with another woman and his eventual eviction of the applicant, was found to be indicative of a lack of commitment to a genuine relationship and a shared life. The Tribunal noted that while the applicant may not have perceived this lack of commitment at the time of marriage, it had emerged by the time of the visa application. Consequently, the Tribunal affirmed the decision not to grant the visa, finding that the applicant did not satisfy the criteria.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

If this issue is resolved in the applicant’s favour, the next question is whether the applicant would continue to meet the requirements of cl 820.211(2) except that the relationship between the applicant and the sponsoring partner has ceased and, relevantly, the applicant has suffered family violence committed by the sponsoring partner, for the purposes of cl 820.221(3) of Schedule 2 of the Regulations.CONSIDERATION OF CLAIMS AND EVIDENCEBackground The applicant is a 65-year-old woman from Vietnam. At the time of application, she claimed to be in a ‘married relationship’ with her then-husband and sponsor, a now 77-year-old Australian citizen who was born in Vietnam. The applicant is widowed with four adult children from her previous marriage. Some of the applicant’s family lives in Australia. The sponsor declared a previous de facto relationship, which ended in 2015 with one child of the relationship. The sponsor did not declare any family living in Australia. The applicant claims to have met the sponsor in or about October 2019. The applicant was in Australia at the time visiting family. The applicant claims that the applicant and the sponsor were introduced by a mutual friend. They developed a friendship, which quickly progressed into a mutual commitment in November 2019 and their marriage in February 2020. The visa application was made one month later. The applicant claims that her relationship with the sponsor ended in or about May 2021 when he evicted her from the apartment in which they lived. She claims that she suffered family violence for approximately 12 months before the relationship ended. I have carefully considered the claims made by the applicant, and the oral and documentary evidence provided. The evidence is plagued with inconsistencies. There is also limited objective corroborating evidence for the applicant’s claims. Ultimately, however, I consider that the application fails on the applicant’s own evidence. I accept the applicant’s evidence at face value that, from her perspective, the relationship was genuine. I also accept that she was mistreated by the sponsor during the relationship (although I make no findings as to whether the mistreatment constituted family violence within the meaning of the Act). However, the Act requires a mutual commitment to a shared life as a married couple, to the exclusion of all others. On the applicant’s evidence, I consider that the sponsor did not have the requisite subjective intention at the time of application. I have considered the representative’s submissions, including that “the Sponsor’s conduct should not in and of itself be considered indicative of a non-genuine relationship. We submit that it would be unreasonable and unfair on the Applicant to consider the abuse that she had endured, comprising the Sponsor’s controlling and oppressive conduct, to be indicative of a lack of commitment for a genuine relationship”. However, having considered all of the evidence before the Tribunal, I find that the sponsor’s conduct was indicative of a lack of commitment to a genuine relationship and to a shared life with the application. While this lack of commitment may not have been evident to the applicant at the time of marriage, the evidence suggests that it had emerged before the time of application.

Decision

Reasons for decision

For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.DECISION The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.Tegen DownesMemberATTACHMENT - 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 affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.Tegen DownesMemberATTACHMENT - 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).