Tran (Migration)

Tran (Migration) [2023] AATA 963 (20 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Thi Chi Mai Tran
Master Hung Hoang Dung Lam
REPRESENTATIVE:  Ms Karen Louis (MARN: 0003543)
CASE NUMBER:  1832738
HOME AFFAIRS REFERENCE(S):          BCC2017/1758332
MEMBER:Tegen Downes
DATE:20 March 2023
PLACE OF DECISION:  Brisbane
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

and the second named applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.311(a) of Schedule 2 to the Regulations

Statement made on 20 March 2023 at 9:25am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – joint bank accounts – shared business – joint residential tenancy agreement – utility bills – shared responsibility for the applicant’s son – international travel – emotional support – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221, 820.311; rr 1.03, 1.15, 1.20
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
Formalities

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 section 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant (the primary applicant) applied for the visa on 17 May 2017 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 who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the primary applicant did not satisfy cl 820.221(2) of Schedule 2 of the Regulations. The delegate considered that the information and evidence provided was insufficient to demonstrate that she was the spouse of the sponsor, as defined in s 5F of the Act.
The applicants appeared before the Tribunal on 20 February 2023. The primary applicant gave evidence and presented arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The hearing was conducted by MS Teams at the applicants’ request.
The applicants were represented in relation to the review. Before the hearing, the representative submitted to the Tribunal written submissions dated 2 November 2022 and

6 February 2023, written statements from the applicants, the sponsor and others and various documentary evidence.
The submissions were thoughtfully drafted. However, many of the claims made in the submissions were not supported by corroborating written or documentary evidence submitted to the Tribunal.
The material submitted to the Tribunal also did not comply with the COVID-19 Special Measures Practice Direction - Migration & Refugee, which was still in effect at the time of the hearing. Further, despite paragraph 6.14 of the Practice Direction, the applicants did not have access to the documents submitted to the Tribunal during the hearing. These matters adversely affected the efficiency of the hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
ISSUES AND LAW
This review application relates to applications for provisional partner visas to enable the applicants to remain in Australia on a temporary basis.
The primary issue in this review application is whether, at the time the visa application was made, and at the time of this decision, the primary applicant is the spouse of an Australian citizen, for the purposes of cl 820.211(2)(a) and cl 820.221(1)(a) of Schedule 2 of the Regulations.
‘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.
In forming a view of the relationship at the time of application, the Tribunal must consider all relevant evidence, which may include evidence of events after the date of application insofar as it assists in the task of determining whether the visa applicant and the sponsor were in a partner relationship at the time of the application. Evidence of events after the visa application is relevant if it tends logically to show the existence or non-existence of facts relevant to the issue to be determined: Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139.
If the primary issue is resolved in the primary applicant’s favour, the secondary issues are whether, at the time of the visa application and at the time of this decision, the primary applicant satisfies the other requirements of cl 820.211 and cl 820.221(1)(a).
In relation to the secondary applicant, the issue is whether, at the time of the visa application, he satisfied the secondary criteria in cl 820.311. Relevantly, cl 820.311 requires that the secondary applicant is a ‘dependent child’ of a person who has applied for a Partner (Residence) (Class BS) visa. Dependent child is defined in reg 1.03 to include a child of a person who has not turned 18.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The primary applicant is a 48-year-old woman from Vietnam. The secondary applicant is her 15-year-old son from a previous relationship. The primary applicant claims to be in a ‘married relationship’ with the sponsor, a 58-year-old Australian citizen who was born in Vietnam and migrated to Australia with his family in 1978. He has three children aged 37, 28 and 19 and is once widowed and once divorced.
The couple claim to have met online on Paltalk in 2011. They claim to have fallen in love in 2014 and to have first met in person in May 2015 when the sponsor visited the primary applicant in Vietnam. They claim to have become engaged in Vietnam in February 2016 and to have had a traditional Vietnamese ceremony attended by members of both families and friends. The applicants then travelled to Australia on prospective marriage visas in April 2017.
There are few documents before the Tribunal to support the couple’s claims as to the progression of their relationship. The couple showed the Tribunal photos from their traditional Vietnamese ceremony during the hearing and stated to the effect that other documentation relevant to the beginning of their relationship, including chat records, records of money transfers from the sponsor to the applicant and photos, were submitted to the Department with the prospective marriage visa application.
The couple presented as credible witnesses at the hearings. Their evidence appeared to be genuine and sincere. There is also no evidence, allegations or gaps in the evidence that would tend to undermine the couple’s claims, or the reliability of the evidence provided.
Although there is limited documentation supporting the development of the relationship, given the weight of contemporary evidence, and given the prospective marriage visa application was successful, I accept the couple’s claims as true.
Are the parties validly married?
The couple submitted a marriage certificate issued by the Registry of Births, Deaths and Marriages in New South Wales certifying that they were married on 19 April 2017 in Canley Vale, New South Wales. Accordingly, in the absence of any evidence to the contrary, the Tribunal is satisfied that 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 married relationship met?
Financial aspects of the relationship
The couple claim that shortly after the applicants’ arrival in Australia, the primary applicant and the sponsor opened a joint account. They claim that a short time later, they changed banking institutions and opened a new joint account. They claim that at this time, the sponsor closed his individual bank account and transferred his funds into the joint account. From this time, the joint account has been the only personal account operated by the couple.
The couple claim that, at the material times, they have been dependent on the sponsor’s salary for their personal and household expenses. His salary is deposited into the joint account.
They claim that the primary applicant brought some cash with her when she moved to Australia and that this cash was used to purchase household items. They claim that until the applicant started working in their shared business in or about 2021, she performed some paid work in nail and beauty salons, that she was paid in cash and that this cash was used for groceries and household items. It was also used to purchase a car for the primary applicant. The car is registered in the primary applicant’s name but is jointly insured.
The couple claim to have purchased a business in or about 2021 as a partnership. They claim that the primary applicant runs the business with two or three part time employees and that the business income has been sufficient to cover wages, rent and other outgoings. They claim that they borrowed money from friends and family to purchase the business, but there are no formal agreements regarding the terms of the loans.
There is limited documentation before the Tribunal to support these claims. The key evidence before the Tribunal is a sample of bank statements from the couple’s personal joint account and business joint account, trading name information for the business and the first page of the lease agreement for the business. However, as the couple presented as credible witnesses, I generally accept their evidence as true.
Having regard to the above, I find that, at the material times, the couple had joint assets (being the joint bank accounts), no significant joint liabilities (as no documentary evidence has been provided as to the alleged partnership), have pooled their financial resources, do not owe any legal obligations to the other party (again, as no documentary evidence has been provided as to the alleged partnership) and share day-to-day household expenses. I find that, at the material times, the financial aspects of the relationship are indicative of a married relationship, as defined in the Act.
Nature of the household
The couple claim to have lived at an address in Cabramatta since the applicants’ arrival in Australia. The couple’s claims are supported by a residential tenancy agreement dated 10 April 2017 and various correspondence addressed to the couple at the address. Accordingly, I accept their claims as true and find that, at the material times, the couple have lived together.
I also find, based on oral testimony and documentary evidence, including utility bills and telephone bills submitted to the Tribunal and rent receipts shown to the Tribunal during the hearing, that the couple have established a joint household.
The couple claim to manage the day-to-day household chores such as cooking, cleaning, shopping, and laundry together. I accept the couple’s claim as true based on the sponsor’s signed statement and oral testimony provided and find that, at the material times, the couple have shared responsibility for housework.
I did not take oral evidence from the secondary applicant but note and accept his undated signed written statement to the Tribunal. I also note the correspondence addressed to the couple from the secondary applicant’s schools. Based on this evidence and the oral testimony provided by the couple, I find that, at the material times, the couple jointly share responsibility for the care and support of the secondary applicant.
I find that, at the material times, the nature of the household is indicative or a married relationship, as defined in the Act.
Social aspects of the relationship
The couple claim not to have an active social life. However, they claim to be recognised by friends and family in both Australia and Vietnam as husband and wife, to attend social gatherings together, and to have travelled together as a family to Vietnam on two occasions. They claim that on their last trip to Vietnam in June 2022, they took the applicant’s mother for a tour of Singapore and Malaysia and that the sponsor also sponsored the applicant’s mother to visit Australia in October 2017.
The couple claim that the applicant is close with the sponsor’s eldest child. However, she has not met the sponsor’s other two children as they are not supportive of their father’s decision to remarry.
The couple submitted supporting evidence to the Tribunal, including: a statutory declaration from the sponsor’s eldest daughter dated 11 November 2019; signed statements from four friends of the sponsor dated 9 December 2019, 29 September 2020, 31 January 2023 and one undated; travel itineraries and other documents related to the family’s travel to Vietnam in 2019 and 2022; and various photographs of the couple with friends and family dated between 2016 and 2022 taken in Australia and overseas
I have considered all of the evidence, which I accept, and find, based on this evidence, that at the material times, the couple represent themselves to other people as being in a married relationship, that the couple’s family, friends and acquaintances believe the relationship between the couple to be genuine and continuing and that the couple plan and undertake joint social activities.
Nature of persons’ commitment to each other
The couple have been in a relationship for approximately 9 years and married for almost 6 years. They have lived together for almost 6 years.
The couple gave evidence to the Tribunal by way of oral testimony and written statements, which I accept as true, of how they support each other. For example, the sponsor gave evidence that when he is depressed after work, the applicant cooks his favourite food and puts on the karaoke because he loves to sing. Accordingly, I find that at the material times, the couple have drawn a degree of companionship and emotional support from each other that is commensurate with a married relationship.
The evidence indicates that the couple have formed a close family relationship with the secondary applicant and the sponsor’s eldest daughter. They have also opened a business together. The couple gave evidence, which I accept, to the effect that they are hoping to improve their financial situation so that they can purchase a small property together in the future. Having regard to this evidence, I find that the couple, at the material times, see the relationship as long-term.
Accordingly, I find that, at the material times, the nature of the couple’s commitment to each other is indicative of a married relationship, as defined in the Act.
Conclusion
Based on the evidence referred to above, I am satisfied and find that, at the material times, the couple have had a mutual commitment to a shared life as a married couple to the exclusion of all others, that the relationship is genuine and continuing and that the couple live together or do not live separately and apart on a permanent basis for the purposes of
s 5F(2)(b) to (d) of the Act.
Accordingly, I am satisfied that the requirements of s 5F(2) are met and that, at the time the visa application was made and at the time of this decision, the couple were in a married relationship, as defined in the Act. Therefore, the primary applicant meets cl 820.211(2)(a) as the she is the spouse of the sponsor, who is an Australian citizen.
Are the other visa criteria met?
As the primary issue has been resolved in the primary applicant’s favour, it is incumbent on the Tribunal to consider whether the primary applicant met the other requirements of cl 820.211(2) at the time of application, and whether she continues to meet those requirements at the time of this decision, in accordance with cl 820.211(1)(a).
For the following reasons, the Tribunal is satisfied that these requirements are met.
At the material times, the Regulations did not contain a cl 820.211(2)(b).
Clause 820.211(2)(c)(i) requires that, if the applicant’s spouse has turned 18, the applicant is sponsored by the spouse. Reg 1.20 relevantly provides that the ‘sponsor’ of an applicant is a person who provides an undertaking to assist the applicant, to the extent necessary, financially and in relation to accommodation during the period of 2 years immediately following the grant of the temporary visa.
There is evidence before the Tribunal that the sponsor completed the Department’s Form 40SP – Sponsorship for a partner to migrate to Australia, which included the relevant undertaking, on 18 June 2017. There is no evidence before the Tribunal that the sponsor has withdrawn his sponsorship and he appeared at the hearing in support of the application. Accordingly, I am satisfied that at the material times, the applicant was and is sponsored by her spouse in accordance with cl 820.211(2)(c).
Clause 820.211(2)(d) only applies to an applicant who was not the holder of a substantive visa at the time of application. As the applicant held a substantive visa at the time of application, it does not apply.
Secondary Applicant
In relation to the secondary applicant, I am satisfied that he meets the requirements of cl 820.311 as he is the visa applicant’s 15-year-old child (according to his birth certificate) and the visa applicant applied for a Partner (Residence) (Class BS) (Subclass 801) in conjunction with her 820 visa application.
CONCLUSION
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
The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the primary 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.
The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the secondary applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.311(a) of Schedule 2 to the Regulations.
Tegen Downes
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).

[2023] AATA 963

20 March 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies