Tran (Migration) - [2023] AATA 963

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…

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 963
Case: [2023] AATA 963
Decision Date: 20 March 2023

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa by a primary applicant, a woman from Vietnam, and a secondary applicant, her 15-year-old son. The primary applicant claimed to be in a married relationship with an Australian citizen. The Tribunal was required to determine whether the applicants met the criteria for the visa, particularly concerning the genuineness and continuation of the relationship between the primary applicant and the sponsor, and whether the secondary applicant satisfied the criteria for a dependent child.

The legal issues before the Tribunal were whether the parties were validly married and whether the other requirements for a married relationship, as outlined in regulation 1.15A of the Migration Regulations 1994, were met. Specifically, the Tribunal had to consider the financial, household, social, and commitment aspects of the relationship, and whether the secondary applicant qualified as a dependent child under regulation 1.03.

The Tribunal found that the parties were validly married, accepting their evidence and the marriage certificate presented. While documentary evidence supporting the early stages of the relationship was limited, the Tribunal found the couple to be credible witnesses and accepted their claims as true, particularly given the success of a prior prospective marriage visa application. The Tribunal also considered the financial aspects, noting the establishment of joint bank accounts and the pooling of financial resources. The Tribunal remitted the application for the visa to the Minister with a direction that the secondary applicant met the criteria for a Subclass 820 (Partner) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 EVIDENCEBackground 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.

Decision

Reasons for decision

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 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 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 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).