Tran (Migration) - [2022] AATA 1791

Tran (Migration) [2022] AATA 1791 (17 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Ngoc Dung Tran
VISA APPLICANT:  Mrs Thi Ngoc Can Pham
REPRESENTATIVE:  Mrs Hanh Thi Bich Ho (MARN: 1467192)
CASE NUMBER:  1836544
DIBP REFERENCE(S):  BCC2017/3747379
MEMBER:Mila Foster
DATE:17 March 2022
PLACE OF DECISION:  Sydney
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 309.213 of Schedule 2 to the Regulations,
·cl 309.221 of Schedule 2 to the Regulations, and
·cl 309.222 of Schedule 2 to the Regulations.

Statement made on 17 March 2022 at 1:44pm
CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – sponsorship limitations – copy of Marriage Certificate provided – parties are validly married – applicants are currently in a genuine spousal relationship– evidence of long-term commitment to a spousal relationship – marriage is valid for the purposes of the Act– sponsor had sponsored his two former spouses – longstanding nature of the parties’ relationship – compelling circumstances exist – Tribunal approves the review applicant’s sponsorship – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, rr 1.15A,1.20J, Schedule 2, cls 309.211, 309.213, 309.221, 309.222
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 October 2018 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 12 October 2017 on the basis of her spouse relationship with the review applicant. 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 delegate refused to grant the visa on the basis that the visa applicant did not satisfy the time of decision criterion in cl 309.222 because the sponsorship limitation in r 1.20J applied.
The review applicant appeared before the Tribunal via video on 17 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.
The review applicant appointed a migration agent to represent him in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the sponsorship limitation in r 1.20J should be waived and cl 309.222 is met. Clause 309.222 requires the sponsorship referred to in cl 309.213 to be approved and in force. In turn, cl 309.213 specifies who must sponsor the visa applicant. Relevantly, a visa applicant referred to in cl 309.211(2), that…

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.

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Details

AGLC: Tran (Migration) [2022] AATA 1791
Case: [2022] AATA 1791
Decision Date: 17 March 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an appeal by a review applicant concerning a Partner (Provisional) (Class UF) visa, subclass 309. The core of the dispute revolved around whether the review applicant's sponsorship met the requirements of the Migration Regulations 1994, particularly in light of the sponsor's previous sponsorships of two former spouses. The Tribunal had before it the Department of Home Affairs file, evidence and submissions presented on review, movement records, and files relating to the sponsor's prior visa applications.

The legal issues before the Tribunal were whether the parties were validly married for the purposes of the Act, whether they were in a genuine and continuing spousal relationship, and whether the sponsorship limitation under regulation 1.20J should be waived, with clause 309.222 requiring the sponsorship to be approved and in force. The Tribunal was required to assess these matters in accordance with the definition of "spouse" in section 5F of the Act, which necessitates a valid marriage, a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and cohabitation or not living separately and apart on a permanent basis.

The Tribunal reasoned that the parties had provided a copy of their marriage certificate, establishing a valid marriage. Furthermore, the Tribunal found that the parties were currently in a genuine spousal relationship, evidenced by the long-term nature of their relationship, their engagement, wedding ceremony, and registration of their marriage. Despite the sponsor having sponsored two previous spouses, the Tribunal concluded that compelling circumstances existed to approve the review applicant's sponsorship.

Consequently, the Tribunal remitted the application for the Partner (Provisional) (Class UF) visa for reconsideration by the Minister, directing that the visa applicant met the criteria under clauses 309.211, 309.213, 309.221, and 309.222 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

The evidence before the Tribunal includes the Department of Home Affairs file relating to the visa application, evidence and submissions presented on review, Department movement records, and Department and Tribunal files relating to the visa application made by a previous spouse of the review applicant. Background and development of relationship It is claimed that the visa applicant is a 46-year-old citizen and resident of Vietnam. Her parents are deceased, her widowed mother having died after the visa application was lodged. She has one sibling, a married brother who also resides in Vietnam. It is claimed that the review applicant is a 63-year-old who was born in Vietnam, was granted permanent residence in Australia on 20 August 1990 and became an Australian citizen on 26 May 1993. He lives with his widowed mother and has 7 siblings. His mother and siblings are all residents and citizens of Australia. The parties claim they met after the visa applicant placed a personal notice in a Vietnamese magazine in February 2013 seeking a husband in Australia. The review applicant contacted the visa applicant by telephone in response to the notice. After a period of communicating by telephone the review applicant travelled to Vietnam to meet the visa applicant. They met in person on 15 May 2013, became engaged and had their wedding ceremony on 4 August 2015, and registered their marriage in Vietnam on 20 June 2017. Prior to the parties’ marriage, the visa applicant had not been married or in a de facto relationship. The review applicant had two prior marriages both of which ended by divorce. He claims to have sponsored both former spouses for visas. He had two sons with his first former wife both of whom are residents and citizens of Australia. Whether the parties are in a spouse relationship Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. The visa application included a photocopy of an Australian citizenship certificate which states that the review applicant was granted citizenship on 26 May 1993. The Tribunal thus finds that the review applicant has been an Australian citizen since that date. ‘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 r.1.15A(3), which is extracted in the attachment to this decision. Are the parties validly married?

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the sponsorship limitation in r 1.20J should be waived and cl 309.222 is met. Clause 309.222 requires the sponsorship referred to in cl 309.213 to be approved and in force. In turn, cl 309.213 specifies who must sponsor the visa applicant. Relevantly, a visa applicant referred to in cl 309.211(2), that is, the spouse or de facto partner of an Australian citizen, Australian permanent resident or eligible New Zealand citizen must be sponsored by that person. The evidence before the Tribunal includes the Department of Home Affairs file relating to the visa application, evidence and submissions presented on review, Department movement records, and Department and Tribunal files relating to the visa application made by a previous spouse of the review applicant. Background and development of relationship It is claimed that the visa applicant is a 46-year-old citizen and resident of Vietnam. Her parents are deceased, her widowed mother having died after the visa application was lodged. She has one sibling, a married brother who also resides in Vietnam. It is claimed that the review applicant is a 63-year-old who was born in Vietnam, was granted permanent residence in Australia on 20 August 1990 and became an Australian citizen on 26 May 1993. He lives with his widowed mother and has 7 siblings. His mother and siblings are all residents and citizens of Australia. The parties claim they met after the visa applicant placed a personal notice in a Vietnamese magazine in February 2013 seeking a husband in Australia. The review applicant contacted the visa applicant by telephone in response to the notice. After a period of communicating by telephone the review applicant travelled to Vietnam to meet the visa applicant. They met in person on 15 May 2013, became engaged and had their wedding ceremony on 4 August 2015, and registered their marriage in Vietnam on 20 June 2017. Prior to the parties’ marriage, the visa applicant had not been married or in a de facto relationship. The review applicant had two prior marriages both of which ended by divorce. He claims to have sponsored both former spouses for visas. He had two sons with his first former wife both of whom are residents and citizens of Australia. Whether the parties are in a spouse relationship Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. The visa application included a photocopy of an Australian citizenship certificate which states that the review applicant was granted citizenship on 26 May 1993. The Tribunal thus finds that the review applicant has been an Australian citizen since that date. ‘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 r.1.15A(3), which is extracted in the attachment to this decision. Are the parties validly married?

Decision

Reasons for decision

Given the preceding findings, 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 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.309.213 of Schedule 2 to the Regulations,·cl 309.221 of Schedule 2 to the Regulations, and ·cl 309.222 of Schedule 2 to the Regulations.Mila FosterMemberATTACHMENT - Extract from Migration Regulations 19941.15ASpouse(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).

Ratio Decidendi

Legal Principle Established

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