Tran (Migration)

[2024] AATA 3915

Tran (Migration) [2024] AATA 3915 (14 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Thi Bich Phuong Tran

VISA APPLICANT:  Mr Bao Anh Nguyen

REPRESENTATIVE:  Mr Andy Vuong Duc Pham

CASE NUMBER:  2013043

DIBP REFERENCE(S):  BCC2019/3135308

MEMBER:James Lambie

DATE:14 June 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl 309.211 of Schedule 2 to the Regulations

·cl 309.221 of Schedule 2 to the Regulations.

Statement made on 14 June 2024 at 10:29am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) genuine and continuing relationship – validly married in home country – substantial joint finances despite living in different countries – sponsor’s multiple visits despite business obligations and COVID-related restrictions – realistic future plans – consistent and credible evidence and supporting statements – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulation 1994 (Cth), r 1.15A(3), Schedule 2, cls 309.211(2), 309.221

CASE
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 on 6 July 2020 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (the Act).

2. The visa applicant (Mr Nguyen) applied for the visa on 21 June 2019 on the basis of his relationship with his sponsor, the review applicant (Ms Tran). 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 (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 309.211(2) because there was insufficient evidence of the existence of a spousal relationship.

4. The review applicant appeared before the Tribunal on 12 June 2024 to give evidence and present arguments.

5. The review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether Ms Tran and Mr Nguyen are in a spousal relationship for the purposes of the Act and Regulations.

8. The Tribunal has a range of material before it including, but not limited to:

   ·Department case file BCC2019/3135308, including the visa application and the material provided in support of it;

   ·Ms Tran’s relationship statement;

   ·a joint bank account authority to the Joint Stock Commercial bank for Foreign Trade of Vietnam;

   ·Ms Tran’s Commonwealth Bank account statements with annotations;

   ·Ms Tran’s superannuation statement showing Mr Nguyen as beneficiary; title deeds showing joint ownership of land in Vietnam;

   ·purchase documents for a bakery business in Australia, showing Mr Nguyen’s contribution to the purchase price;

   ·receipts for goods sent to Vietnam;

   ·Ms Tran’s passport showing entry and exit stamps for Vietnam;

   ·Ms Tran’s declaration of the relationship to Centrelink;

   ·Ms Tran’s tax returns, identifying Mr Nguyen as her spouse;

   ·Vietnamese household registration documents;

   ·various Vietnamese government returns;

   ·form 888 statutory declarations;

   ·a bundle of documents, including photographs, invitations, and messages relating to the parties’ wedding;

   ·travel bookings and itineraries;

   ·medical expense receipts for Mr Tran’s mother, paid by Mr Nguyen;

   ·.medical reports for Ms Tran;

   ·bundle of photographs; and

   ·screenshots of Facebook communications between Ms Tran and Mr Nguyen.

9. The Tribunal has had regard to all of this material, some of which is referred to in more detail below.

   Whether the parties are in a spouse or de facto relationship

10. 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.

11. ‘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?

12. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.  The parties produced a marriage certificate showing they were married at Bien Hoa City, Dong Nai Province, Vietnam, on  11 April 2019 . 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?

    Financial aspects

13. In assessing the financial aspects of the relationship, I have considered the joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

14. Because the parties live in different countries, I have made allowances for the difficulties in integrating their finances and pooling their resources. Nevertheless, since 2019, the parties have undertaken quite substantial joint financial enterprises, including the acquisition of two jointly owned residential properties in Vietnam and the acquisition of a bakery in Canberra by Ms Tran with the substantial financial assistance of Mr Nguyen. They provided evidence that they both contributed to the cost of their wedding. Mr Nguyen provided substantial assistance to the medical care of Ms Tran’s mother.

15. In addition, Ms Tran has inherited a chilli packing and export business from her parents, the profits from which have been applied to a joint savings account in Australia, which the parties hope to apply to the purchase of a home should Mr Nguyen be granted the visa. Ms Tran sold the bakery business in April 2024 and the proceeds of this have also been applied towards the house deposit.  These are all attested by the bank statements provided by the parties.

16. In the circumstances, the degree of financial interdependence between Mr Nguyen and Ms Tran is quite substantial. The Tribunal gives the evidence some considerable weight in favour of their claims to be in a spousal relationship.

    Nature of the household

17. In assessing the nature of the household, I have considered any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

18. As noted above, the parties live in separate countries and have had only limited opportunities to establish a household together. However, despite this, they have provided evidence consistent with their being in a spousal relationship. The Tribunal gives considerable weight to the fact that Ms Tran and Mr Nguyen have sought to start a family together, evidenced by the unhappy event of Ms Tran suffering a miscarriage in May 2023. Ms Tran has travelled to Vietnam on some 7 occasions since the visa application was lodged on 21 June 2019. Since February 2020, she has stayed for approximately one month per visit, although her visit from August 2023 lasted three months.  Given that there were COVID-related travel restrictions during this period, and that Ms Tran had employment and business obligations to coordinate with these visits, the Tribunal gives the amount of time that the parties have spent together substantial weight.

19. Ms Tran and Mr Nguyen gave consistent and credible evidence as to the way they conduct their household.  Ms Tran, when she is in Vietnam, and Mr Nguyen stay with Mr Nguyen’s parents. The evidence is that they take their family responsibilities — both in respect of their own families and their respective in-laws — very seriously, and a good deal of the time they spent together relates to the care of Ms Tran’s father and Mr Nguyen’s parents. They gave evidence of their shared Roman Catholic religious faith and the time they spend together, and separately, in their faith communities.

20. In all of the circumstances, I am satisfied that the nature of the household is consistent with the maintenance of a genuine spousal relationship.

    Social aspects

21. In assessing the social aspects of the relationship, I have considered 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.

22. In addition to the form 888 statutory declarations provided to the Department, the parties provided further and updated form 888 statutory declarations from Thi Ngoc Bich Le (dated 16 August 2022), Thi Kin Ngan Tran (dated 19 May 2023), Eugene Ding Huang Lua (dated 22 May 2023).  I give these weight as evidence that Ms Tran and Mr Nguyen have consistently over some years represented themselves as married to each other, and that their friends and acquaintances accept them as a married couple.  Similarly, I give weight to the wedding photographs.

23. The parties have produced extremely voluminous records of their social media exchanges, which indicate their shared interests, their joint and separate social activities (reflecting that they spend the majority of their time in separate countries), and pass on greetings and other communications from their circle of friends and family/

24. In view of all the evidence, I am satisfied that the social aspects of Ms Tran’s and Mr Nguyen’s relationship are consistent with the parties being in a spousal relationship of some standing.

    Nature of the commitment

25. In assessing the nature of the parties’ commitment to each other, I have considered the duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

26. In addition to the parties’ relationship statements, I have had regard to their social media exchanges, the medical records, the cards and other greetings they have sent to each other, and the fact that they have now been married for five years.  The overall impression, reinforced by their oral testimony at the hearing, is that there is nothing that strikes me as discordant with their claims to be in a genuine spousal relationship. The evidence, in particular, of the care and support Mr Nguyen provided to Ms Tran’s mother in her illness, and the affecting distress to both of them surrounding the miscarriage, is that they have drawn significant strength from the relationship, which is also, I have no doubt, buttressed by their shared religious faith, for which there is abundant evidence.  I give very significant weight to the amount of time, expense and foregone income Ms Tran has expended on her lengthy stays in Vietnam, and to the assiduity with which the parties have pooled their limited means to provide for their future in Australia.  Their plans for their future are realistic and well-developed.  I am therefore satisfied that that they see their relationship as long-term and, overall, that the evidence of the nature of their commitment is consistent with their being in a genuine marriage of long standing.

27. On an assessment of all the evidence, I am satisfied that Ms Tran and Mr Nguyen have a mutual commitment to a shared life to exclusion of others, that theirs is a genuine and continuing relationship, and they have sought, and intend in the future, to live together, and not separately and apart, on a permanent basis.

28. 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.

29. Therefore the visa applicant meets cl 309.211 and cl 309.221.

30. 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 309 visa.

    DECISION

31. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl 309.211 of Schedule 2 to the Regulations

    ·cl 309.221 of Schedule 2 to the Regulations

    James Lambie
    Senior Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (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).