Tran (Migration)

[2022] AATA 5232

Tran (Migration) [2022] AATA 5232 (16 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Van Tam Tran

REPRESENTATIVE:  Ms Kim Le (MARN: 1681045)

CASE NUMBER:  1833396

HOME AFFAIRS REFERENCE(S):          BCC2016/3679812

MEMBER:Anne Grant

DATE:16 December 2022

PLACE OF DECISION:  Melbourne

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) of Schedule 2 to the Regulations

·cl 820.221 of Schedule 2 to the Regulations

Statement made on 16 December 2022 at 9:49am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – speed of development of the relationship – nature of the household – social aspects – nature of the commitment – financial aspects – isolation of significant income and savings in the name of the visa applicant – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; 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 4 November 2016 on the basis of his relationship with his 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 refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.216 because they were not satisfied that he was the spouse of the sponsor (as described in the Act and regulations) after considering the evidence and information provided.

4. The applicant was invited to a hearing to present arguments and make submissions on 6 December 2022. Prior to the hearing date, the applicant’s representative requested that the hearing be converted to a MS Teams video hearing due to her sustaining a leg injury in a car accident which made it difficult for her to travel to a hearing.  I agreed to this request and the hearing proceeded 6 December 2022 by video conference.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicant was represented in relation to the review, and the visa applicant and sponsor were present at the Migration Agent’s offices for the duration of the hearing with their agent.  They each gave evidence in the absence of the other.

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 the applicant and sponsor, who are married, are spouses as described by the regulations.  The delegate was not satisfied that they were spouses at the time of application. 

   Whether the parties are in a spouse or de facto relationship

8. 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.  I am satisfied on the evidence (as the delegate was) that the sponsor is an Australian Citizen.

9. ‘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?

10. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.  The applicant and sponsor have provided evidence which shows that the sponsor is divorced from her previous husband with the final order made on 2 July 2015. The parties have provided evidence that they married in Australia 12 June 2016.  A marriage certificate has been provided. There is no evidence before me which suggests that the marriage is not a valid one.  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?

11. The applicant and sponsor submitted extensive supporting material prior to the hearing, some of which was discussed at hearing with each of them.  A list of the documents, statements and material submitted is attached to this statement and that material has been considered in assessing the various aspects of the parties’ relationship, even though it may not be specifically referred to in this statement. The applicant and sponsor also gave additional evidence during the hearing on each of the aspects of their relationship.   

12. After considering the extensive evidence submitted prior to the hearing, I had some questions about, in particular, the financial aspects of their relationship and also about information covered by a certificate under s.376 of the Act.  After hearing the applicant’s responses to my questions on their financial documents at hearing, I informed them that I had some lingering concerns about the financial aspects of their relationship because the banking documents seemed to suggest that there were large sums of money moving through bank accounts in the visa applicant’s name alone, and which I might consider as suggesting that they were not pooling their funds.  The applicants each responded that they share their financial information with each other, and also that they each have access to the income the applicant receives.  This is further discussed below when considering the financial aspects of the relationship.

13. Subsequent to the hearing, the applicants provided additional information to the Tribunal in response to my concerns about the financial aspects of their relationship, discussed further below. 

    History of the Relationship.

14. The evidence reflects that the visa applicant arrived in Australia on a student visa on 14 November 2013. The parties met on 1 June 2015, and the visa applicant was then living with his uncle.  The applicant moved into a shared house with the sponsor about three months later and their relationship developed over the following period.  In July 2015, the sponsor finalised her divorce from her ex-husband.  The parties then married on 12 June 2016. Their daughter Sarina was born on 20 February 2017.

15. I asked the applicant and sponsor whether the pregnancy caused them to marry quickly.  They each said that they were happy about having a child together and had already talked about doing so and getting married.  So perhaps they married a little sooner than they would otherwise, but they had intended to do so anyway. 

16. The parties described relatives and friends who attended their engagement party.  At the time of their marriage, the sponsor was estranged from her mother.  The visa applicant said that he later talked to them and helped them to reconcile.  This was confirmed with the sponsor.  The sponsor said that when she had been living with her mother after her first marriage ended, her mother had criticised her for going out too much and they had argued a lot about her situation. Their relationship is better now.  When describing the end of her first relationship, the sponsor described her first husband as being a lot older than her and though she didn’t think it was a problem at the time they married, they found the age difference to be too big.  He wanted to have children straight away, but the sponsor was not ready.

17. The departmental file contains a certificate under s.376 of the Act covering three folios of the file.  I informed the applicant and sponsor of the existence of the certificate but said that I considered that as a matter of fairness, regardless of its’ validity, it is necessary to put the substance of the information conveyed by the documents to the sponsor for her response.   For that reason, I did not invite any response or submissions at that stage of the proceedings on the validity of the certificate as I would not be disclosing the documents covered by the certificate – just a general description of what they said. That information was a claim or claims made in 2015 that her first marriage was a contrived marriage, arranged by her mother. I told the sponsor that the information does not confirm the source of the allegations.  I told the sponsor that she did not have to respond to that information and could discuss it with her representative, and if necessary, I would put it to her more formally after the hearing.  She nonetheless decided to respond to the information and informed me that her first marriage was not contrived.  She met her first husband when he ‘chatted her up’ at work. She really loved him, but she was really too young to marry, and their age difference became too difficult to manage. She said that her marriage was not arranged by her mother.

18. The visa applicant said he knew about the sponsor’s first marriage and had discussed it generally with her.  She told him she was just too young and they had found the age gap too big for them. They had broken up before he met the sponsor. 

19. I note that I am not considering the genuineness of the sponsor’s first relationship.  I have evidence before me that it ended in divorce in mid-2015, which would mean that they had separated in mid-2014.  There are no similar allegations before me about the sponsor’s relationship with the visa applicant.  For this reason, I have decided that I place no adverse or any weight on the allegations in the documents covered by the certificate and therefore did not consider it necessary to put that information to the parties more formally in this review.     

20. The delegate had concerns about the speed of development of the relationship in this case.  I accept that the parties’ relationship developed quickly and that it is likely that they married earlier than they otherwise would have, due to the imminent birth of their child.  I do not consider that the speed of the relationship suggests that it is not a genuine relationship in this case.

21. A marriage certificate has been provided that shows that the parties married at home in Ford Avenue, Sunshine North on 12 June 2016.  They gave evidence that important friends and family attended a party to celebrate.  The parties also celebrated their wedding with Vietnamese family at a dinner in 2022 while in the country after the death of the visa applicant’s father this year.  They also arranged for formal wedding photos (including their daughter) to be taken in Vietnam, which have been provided and show the couple posing in formal wedding attire in front of beautiful Vietnamese settings.  I asked why they had those photos taken, given it was so long after their marriage.  The sponsor said that they had always wanted to celebrate with their family and take those photos but the visa applicant had not, until this year, been able to leave Australia.  This year he was granted a visa which allowed him to travel home for his father’s memorial services.  He took that opportunity, and the sponsor and their daughter travelled with him in order to support him and also so that the applicant’s family could meet his wife and child.  A significant number of photographs have been provided of the applicant, the sponsor and their child at various funeral and other events, including with various other persons, in Vietnam in November 2022.  I accept that the visa applicant’s family first met the sponsor and the applicant’s child in person during 2022 and that they celebrated (belatedly) their marriage whilst the applicant was in Vietnam. 

    Nature of the Household

22. The evidence of the parties is that the visa applicant initially moved in with the sponsor into a shared house with other of the sponsor’s family members in Percy Street, Sunshine in September 2015.  Shortly afterwards they moved to Ford Avenue, Sunshine North and that was where their relationship became intimate and exclusive.  Since then, they have moved again to Nurla Court, Sunshine West, where they live now. They share the household responsibilities, with the sponsor taking the greater share of day-to-day care of the child, shopping and preparing meals for the family.  The visa applicant assists as necessary.  The evidence reflects that the visa applicant works full time, however whenever possible, he takes the child to or collects her from school.  He has attended student and teacher events at the school.  Currently the sponsor is taking steps to re-skill to return to the workforce.

23. The visa applicant and sponsor have provided a large number of documents verifying their joint presence at each of their shared addresses, including medical, banking, taxation, phone bills and car registration and licence details. These documents strongly suggest that the parties have lived together at various addresses in the period from 2016 to 2022 and that they continue to do so.

24. Many photographs of ordinary life events and parties, such as birthdays, dinners or weddings have been provided, which include the applicant, the sponsor and the child as well as a number of other people, at their home and other locations. 

25. The parties have also provided many photographs of either or both of them with the child, Sarina, who was born on 20 February 2017 in Sunshine Hospital, at various ages during her young life. They have provided Medicare records demonstrating that the child’s health records are associated with the address of Nurla Court, Sunshine West. 

26. Consideration of the evidence provided about the nature of the household suggests that the visa applicant and sponsor (and their daughter after her birth) have lived together since late 2015. The evidence strongly suggests that they have lived as a family unit since the time of their marriage. Their daughter is now aged 7 and attending school, and the evidence before me overwhelmingly suggests that both parents play a role in her care and in her day to day life. Consideration of the nature of the household suggests that the applicant and sponsor lived together as a couple since at least early 2016.   

    Social Aspects of the relationship

27. Both the applicant and sponsor gave evidence that their families, friends and other, objective organisations like the school and the tax office recognise them as a married couple.  As noted above, many photographs have been provided of the applicant and sponsor (and their daughter) at various locations and events over the past several years.  With them in many of these photographs are other children, family and friends.  Until late this year, all of those photographs were of the couple in Australia.   

28. The evidence before me also suggests that in November 2022 after the visa applicant’s father died (in late October), the visa applicant was granted a bridging visa allowing him to return to Vietnam to pay his respects to his late father and his family.  The applicant and sponsor have provided flight details and photographs depicting them on the flight to Vietnam.  I accept that the sponsor and their child travelled with the visa applicant to Vietnam on 4 November 2022 and returned together on 21 November 2022.  I also accept that they, as a family, participated in the mourning rituals for the visa applicant’s father, and also used the opportunity to properly introduce the sponsor and their child to the visa applicant’s family. 

29. The visa applicant and sponsor both gave evidence that his family was very welcoming of the sponsor and their child.  They threw them a dinner party, and spent time with them over their visit. The sponsor said that she got on very well with one of her husband’s sisters in particular, and has kept in touch with his family since returning to Australia. The applicant and sponsor have provided formal wedding photographs (with their daughter) taken during their time in Vietnam and featuring Vietnamese landmarks, as well as photographs of the mourning ceremonies and rituals. Photographs have also been provided of screen shots of video calls over previous years in which the applicant’s mother is chatting with him and the child.

30. With regards the sponsor’s family, the parties gave evidence that the applicant’s mother is very supportive of the relationship and they have ongoing contact with her. In fact, she had borrowed and was the one driving the car which got a speeding fine (a copy of which had been sent in with the documents submitted to the Tribunal), not the visa applicant. 

31. The sponsor’s brother-in-law has provided a statement supporting the relationship.   In a statement dated 2 September 2016, Mr Cong Phuong Ho states that he used to live with the sponsor before moving out and that he was introduced to the applicant when they first started dating.  Mr Ho goes on to say that he sees them as very happy with each other and refers to them expecting a child and how excited ‘we’ were when they signed the marriage certificate.

32. Also provided with the application was a statutory declaration statement from Thuy Binh Phuong Nguyen the (visa applicant’s cousin-in-law), dated 19 August 2016.  Ms Nguyen lives in Australia. She states that she is in contact with the applicant and sponsor regularly after he moved out of their shared home.  Ms Nguyen states that she believes their relationship is genuine and continuing, and has observed them being loving and caring towards each other.

33. The applicant and sponsor have provided evidence that the sponsor has formally declared her relationship status as ‘partnered’ and declares his income to Centrelink.  The taxation returns of the visa applicant name her as his spouse.  These documents provide additional support for a finding that the couple are recognised and present themselves as a married couple to official organisations.

34. The applicant and sponsor have provided extensive evidence of the social acceptance of their relationship and their presentation as a married couple.  Consideration of the social aspects of the relationship suggests that the applicant and sponsor have been accepted as and considered a married couple (and later a family) since at least June 2016.

    Nature of the applicant and sponsor’s commitment to each other.

35. The evidence, some of which has already been discussed above, establishes that the applicant and sponsor have lived together as a couple since marrying, sharing the care of their child, the normal aspects of day-to-day life, and including close interaction with each other’s families.   

36. At hearing, the applicant stated that he loves the sponsor, and their daughter, and that they have been together now since 2015 and he expects and intends that they will stay together.  The sponsor echoed these thoughts, noting that the visa applicant is a loving father who provides well for them.  They both stated that they hope to save for their own home, particularly once the sponsor returns to work.

1. At hearing the sponsor indicated that she felt unwell and left the room for a few moments to attend the bathroom.  It was observed that the visa applicant, who was waiting outside the room, observed this and started to check on her before being shooed out of the room by his representative.  I observed that the sponsor initially found the hearing overwhelming and that the visa applicant demonstrated genuine concern for her wellbeing. 

2. I asked the parties whether they had experienced covid or other illness and they advised that they had not.  When the visa applicant had a colonoscopy, the sponsor assisted him to attend his brief hospital visit.   

3. As an indicator of the commitment between the parties, I asked what support, if any, they provided to each other’s family. They each confirmed that they have sent money overseas to the applicant’s family (particularly around his father’s funeral time) and that they would help each other’s family out as they need.  The sponsor said she was happy for them to continue to send financial support to the visa applicant’s large family in Vietnam. 

4. Consideration of the nature of the parties’ commitment to each other and to the relationship suggests that they share a mutual commitment to and care for each other and that they are both committed to their marriage and child.

   Financial Aspects of the relationship.

5. The parties have provided various statements from bank accounts, including one joint account and two others in the visa applicant’s sole name.

6. The Commonwealth Bank Smart Access account in joint names (account ending *092) discloses frequent deposits of relatively modest amounts over the several years of the relationship.  The account transactions reflect that it is used for purchases of daily necessities like groceries, clothing, petrol, restaurants, and fast food. The parties confirmed that this is a joint account and that the sponsor uses this account mostly for the family’s daily needs. The visa applicant transfers money from his income into the account regularly.

7. Initially, the joint account reflected regular deposits of the visa applicant’s salary. Transfers into the joint account over the past few years were from two other accounts in the visa applicant’s sole name.  (Accounts ending *887 and *288).  Several large deposits drew my attention to the joint account, starting in April 2021.  For example, there is a transfer into the account from *288 of $11,000 on 18 April 2021 which was then transferred out over the following month in smaller transactions labelled “car” and “Hui” and “family”. Then on 16 June and 25 June there are two deposits of $12,500 and $8,300 from account *288.  Perusal of that account, in the visa applicant’s sole name, reflects variable deposits over several years from cash and transfers again to and from the other account ending *887.  Large deposits from Royal Flair, the applicant’s employer were made into the account irregularly from August 2019. 

8. Having looked at the bank documents, I had some concerns that the visa applicant was receiving a higher income than he was sharing with the sponsor, because most of his earnings were deposited into and transferred into accounts in his sole name.  When I asked the visa applicant about that and the large deposits, he said this was the gross money from his employer and from that he had to pay tax and GST, so he would isolate it so that he didn’t spend it.  His employer required him to get an ABN when he worked for them.  I found this evidence confusing because elsewhere in the documentation it had been suggested that the visa applicant earned income of around $1,000 per week. These large deposits did not reflect an income so low.  The applicant appeared confused by my questions but attempted to explain his working arrangements.  He stated that the large deposits was money from his employer for the work he did; but as a contractor he had to pay tax and gst on that income.  I accept, looking at the account transactions, that the account reflects large taxation payments made to the ATO by the applicant, consistent with the applicant’s evidence.  However, I was still confused by the visa applicant’s payment arrangements and the large deposits, and whether it reflected a lack of pooling of financial resources. 

9. The sponsor was unable to help me to understand the income received from the applicant’s employer.  She said he had to pay his business expenses from that income, but could not otherwise explain his business arrangements.  Nonetheless, she gave evidence that she was aware of the accounts in his sole name and could access them herself from their online banking app. He had those accounts before he met the applicant.  The sponsor said that they had savings towards a home and that she was comfortable that it was in an account in the applicant’s sole name.  She completely trusts him.  The sponsor said that the last time she thought about it, the balance was around $80,000.  (The applicant had also approximated the balance at around $80,000.) The sponsor stated that she can access that account using a banking application. She said she sometimes transfers money from that account if she needs it for the joint account.  She appeared genuinely surprised by a question which suggested she might not have access to those funds and responded that ‘of course’ she does.

10. At the conclusion of the hearing, I indicated that I was still troubled by the isolation of significant income and savings in the name of the visa applicant and that this might indicate a lack of pooling or sharing of their income as a couple. The applicant and sponsor responded that they actually have joint access to the accounts and confirmed that the savings they have accrued belong to both of them, with the sponsor having access to it, even though it is in the applicant’s name. 

11. Subsequent to the hearing, the parties provided additional information about their finances, including an explanation of the accounts, invoices to the caravan company from the visa applicant and bank statements from the account ending *3887.   Those statements reflect that the balance of the savings account is almost $90,000 and has grown steadily since 2017.

12. Having considered the applicant and sponsor’s evidence, the bank statements and the explanations provided, I am satisfied that the visa applicant’s income from building caravans for Royal Flair as a contractor is the sole income of the family; that the income is used for their day to day expenses and also is saved for a joint goal of buying their first home. They each have declared their relationship as appropriate to external organisations such as the tax office and Centrelink.

13. The applicant and sponsor have provided evidence of shared financial household responsibilities, all of which are met from the applicant’s income, and have demonstrated to my satisfaction the pooling of family income.   My initial concerns about separate bank accounts have been resolved.  I consider that the visa applicant maintains separate accounts to manage his business income and payments, but otherwise the entirety of his net income is used for the family or saved for the family’s future. 

14. The applicant has also provided his binding superannuation nomination demonstrating that his wife and daughter are 50% beneficiaries of his superannuation. This document suggests an intention to ensure the financial care of his wife and child in the event of his death.

15. Consideration of the financial aspects of the relationship suggests that the sponsor and their child are supported by the visa applicant, that their income (net) is shared, used to meet all daily expenses and saved for their future together. 

16. Having considered and had regard to each of the relevant aspects of the relationship as discussed above, I am satisfied that the applicants are living together, have a mutual commitment to a shared life to the exclusion of others, and are in a genuine and continuing relationship.  I am satisfied that they were in this relationship at the time they applied for the visa and that they continue in that relationship.

17. On the basis of the above, the Tribunal is satisfied that the requirements of s 5F(2) are met at the time of the visa application and at the time of this decision.

18. Departmental records reflect that at the time of application and at the time of this decision, the applicant was (and is) sponsored by his wife.  He satisfies subclause (2)(c). At the time of application, departmental records reflect that the applicant held a TU 573 visa which was granted on 7 November 2013 and was valid until 30 August 2017.  Subclause 2(d) does not apply in the applicant’s case.   

19. Therefore, the visa applicant meets cl 820.211(2) and cl 820.221.   

20. 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

21. 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) of Schedule 2 to the Regulations

    ·cl 820.221 of Schedule 2 to the Regulations

    Anne Grant
    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).