TRAN (Migration)

[2023] AATA 4217

TRAN (Migration) [2023] AATA 4217 (4 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs THI KIM XUAN TRAN

REPRESENTATIVE:  Mrs PAULINE LAM (MARN: 9476142)

CASE NUMBER:  1835346

HOME AFFAIRS REFERENCE(S):          BCC2018/70744

MEMBER:Ann Duffield

DATE:4 August 2023

PLACE OF DECISION:  Canberra

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the 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 04 August 2023 at 12:01pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – financial aspects – nature of the household – social aspects – nature of the commitment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), rr 1.15A, 2.03A; Schedule 2, cls 820.211, 820.221

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 applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 5 January 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.

3. The delegate did not consider that the evidence provided by the parties was sufficient to demonstrate that the applicant was the de facto partner of the sponsor, as defined and found that cl. 820.211 was not met.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant is the spouse of the sponsor within the meaning of the Migration Act.

   BACKGOUND          

7. The sponsor, Richard Ho, was born in Australia on 12 April 1992 and he is an Australian Citizen by birth.

8. The applicant, Thi Kim Xuan Tran, was born in October 1989 in Vietnam and is a national of that country.

9. The parties claim they first met at work, the Cabramatta Rugby League, in December 2015. They became friends during the company Christmas party, and then continued to spend time together after that evening with their friends. They began dating on 30 December 2016. The applicant moved in with the sponsor and her family in April 2017 and registered their de facto relationship on 3 December 2017.

10. The parties were married in a wedding ceremony followed by a reception in New South Wales on 21 September 2019. They travelled to Vietnam to hold a reception for their families and friends overseas in January 2020. Their daughter was born in Australia on 8 December 2020, and she is an Australian citizen.

    Whether the parties are in a spouse or de facto relationship

11. 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.

12. ‘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) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

13. The parties claim they began their relationship in December 2016. They moved in together in April 2017 and registered their marriage in New South Wales in December 2017. The visa application was lodged on 5 January 2018, it was refused on 23 November 2018. The parties were married in September 2019. Their child was born in December 2020.

14. In this case, the applicant must meet the requirements for a de-facto relationship at the time of the application, and for a spouse at the time of decision. Relevantly, the 12-month relationship requirement set out in r.2.03A(3) does not apply for visa applications made on or after 9 November 2009 where the de facto relationship is registered under a prescribed law of a State or Territory. In New South Wales, this includes a relationship registered under the Relationships Register Act 2010 (NSW): which allows eligible parties to register their relationship under the Births, Deaths and Marriages Registration Act 1995. In this case the parties have provided evidence that their relationship was registered on 3 December 2017 accordance with the Births, Deaths and Marriages Registration Act 1995.

15. 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?

16. The Tribunal has considered the financial aspects of the relationship – including 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.

17. The applicant and sponsor provided a detailed statutory declaration dated 31 March 2023 addressing the legislative requirements relevant to the visa.

18. In relation to their finances the parties stated that they purchased a home with assistance from the sponsor’s mother and, as such, the house is in the names of himself and his mother. His mother will transfer her share to the applicant when she is eligible. The house is being rented out and the rental income goes into their joint account. The applicant and sponsor are responsible for paying the loan, the rates and bills associated with the home. The house insurance is in their names. They have four joint bank accounts.

19. A utility bill and council rates notice were provided for the parties’ investment home, as stated these were addressed to the sponsor and his mother.

20. A receipt from a real estate agent dated January 2023 shows that income from the rental property is paid into joint account of the applicant and sponsor, and an Insurance Certificate dated November 2022 demonstrates that the parties’ hold home insurance over the investment property in joint names.

21. Bank statements for the parties’ joint accounts for the period between July 2019 and December 2022 were provided to the Tribunal, as were payslips for the applicant dated between February and March 2023 showing her salary is paid into their joint account.

22. Copies of the sponsor’s tax returns for the financial years ending 2019, 2020, 2021 and 2022, indicating he resides at the same address as the applicant and that he has declared the applicant as his spouse, were provided to the Tribunal

23. The applicant’s tax returns for the years ending, 2019, 2020, 2021, and 2022 were submitted. These show the applicant residing at the same address as the sponsor and nominate him as her spouse.

24. The Tribunal is satisfied that the financial aspects of the parties’ relationship supports a finding that they have a long term commitment to a shared life together as husband and wife.

25. The Tribunal has considered the nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

26. In their statement to the Tribunal, the parties provided details regarding their living and household arrangements. They indicated that the applicant, sponsor and their daughter reside with the sponsor’s parents in a three-bedroom home, in which they use the master bedroom. Their daughter attends childcare four days a week and is cared for by her grandfather (the sponsor’s father) on Fridays, as both the applicant sponsor work full time. They drop her of at childcare together, the sponsor drives the applicant to the trains station, he returns home to work and picks their daughter up from childcare. They share household duties with the sponsor’s parents.

27. The parties have provided copies of correspondence to the sponsor from Centrelink regarding Family Assistance Statement, Centrelink Dad and Partner Pay Statements, the Child Care subsidy, dated between 17 December 2020 and August 2022, and addressed to the sponsor at the parties claimed shared address.

28. They have also provided statements for the applicant’s bank accounts dated been January 2021 and March 2023 addressed to her at their shared address, and payslips for the sponsor dated between January and March 2023 which also show his residential address is the same as that identified by the applicant. 

29. The Tribunal is satisfied that the nature of the parties’ household supports a finding that they have a mutual commitment to a shared life together and they do not live separately and apart.

30. The Tribunal has considered the social aspects of the relationship – including whether 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.

31. In their statement to the Tribunal the parties provided details of their wedding in Australia. Their relationship is supported by family and friends, they share social and family activities. The applicant’s family travelled to Australia from Vietnam for their daughter’s second birthday and their respective families spent time together. They have declared their relationship to government agencies.

32. A significant number of photographs were provided to the Tribunal depicting the applicant and sponsor with each other and with family and friends. These were taken over a period of time between 2018 and 2023 and include: pictures taken with family and friends in Canberra, the Gold coast and Vietnam in 2019;  their wedding photographs demonstrating they were married in the presence of a large number of family and friends in September 2019; a ‘gender reveal’ party held at their home in August 2020 showing the parties appearing happy and relaxed in the presence of family and friends; photographs taken on their 2020 trip to Vietnam for their wedding reception with family at Lunar New Year; photographs of the parties with their daughter including at her first and second birthday parties; pictures of the applicant’s birthday party in 2021; and pictures of walks and other social events with their friends.

33. Evidence, in the form of a ‘Reservation Agreement’, was provided to support that their wedding reception held in Vietnam in January 2020, with 40 tables and ten guests per table.

34. A statutory declaration from the sponsor’s colleague dated 7 December 2021, confirming he has spent time with the applicant and the sponsor, he attended their wedding and as met their daughter. He believes they are in a genuine relationship; and a statutory declaration from the sponsor’s cousin dated 7 December 2021, stating he spends time with the parties at family and social events and he considers they are a very happy family.

35. The Tribunal is satisfied that the social aspects of the parties’ relationship supports a finding that they have a mutual commitment to a shared life together as husband and wife and that this is recognised by friends and family.

36. The Tribunal has considered the nature of persons' commitment to each other – including 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.

37. In their statement to the Tribunal, and consistently with their advice to the Department, they detailed the development of their relationship, meeting at a work Christmas party in 2015 and forming a relationship in 2016. They moved in together in April 2017, and eventually sought approval from their respective families to marry. They have now been a couple for almost seven years and have a daughter. They travelled to Singapore in May 2023 and plan to try for a second child in 2024. They have put a deposit on a family car, and hope to move out into their own home soon.

38. A copy of the parties wedding certificate was provided to evidence that they were legally married on 21 September 2019.

39. Copies of the medical records regarding the applicant’s pregnancy were submitted to the Tribunal, and they provided a copy of their daughter’s birth certificate was provided demonstrating that she was born in New South Wales on 8 December 2020. The certificate identifies the applicant and sponsor as her parents.

40. The parties provided evidence of their joint overseas travel including trips to Vietnam in December 2019; trip to Vietnam in December 2020; and travel to Singapore in May 2023

41. 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 the time of this decision.

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

43. 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 820 visa.

    DECISION

44. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the 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

    Ann Duffield
    Senior 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).