Tran (Migration)

Tran (Migration) [2021] AATA 2860 (6 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Tuan Trung Tran
Mr Gia Anh Tran
CASE NUMBER:  1925354
HOME AFFAIRS REFERENCE(S):          BCC2018/1906016
MEMBER:Steven Griffiths
DATE:6 August 2021
PLACE OF DECISION:  Adelaide
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) of Schedule 2 to the Regulations; and
·cl 820.221(1) of Schedule 2 to the Regulations.

Statement made on 06 August 2021 at 3:16pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – genuine and continuing relationship – validly married – financial, household and social aspects of relationship and nature of commitment – companionship and emotional support – member of family unit – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), rr 1.09A(3), 1.15A, Schedule 2, cls 820.211(2), 820.211(1)
CASE

He v MIBP [2017] FCAFC 206
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 Home Affairs to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant (the applicant) applied for the visa on 1 May 2018 on the basis of his relationship with his sponsor, Ms. Dang Hong Xuan Nguyen. 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2) as the delegate determined that from the evidence presented the parties do not have a mutual commitment to shared life and the applicant is not the spouse of the sponsor.
The parties were assisted by their registered migration agent, Mr. Michael Cai, of Jack Ta & Associates.
The primary applicant and sponsor appeared before the Tribunal on 5 August 2021 to give evidence, respond to questions and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has taken into consideration all the evidence in the Department of Home Affairs file and the Tribunal file including information provided by the applicants prior to what had been an intended hearing.
ISSUE
The issue in the present case is whether the applicant is the spouse, as defined in s.5F of the Act, of the sponsor at the time of the visa application and at the time of this decision.
BACKGOUND OF THE EVIDENCE
Mr. Tran was born in the Vietnam in 1977. His parents, born 1946 & 1949 and 2 sisters, born 1975 & 1977, live in Vietnam. He was previously married in 08/2006 and divorced 01/2018 and has 2 sons, born 2006 & 2008, with the eldest child the secondary visa applicant. He was granted a Visitor 600 Visa on 15/2/17 and to cease 7/5/18 and was on a WA-010 Bridging Visa from 2/5/18 and to cease 24/12/18, from which he has been on a WB-020 Bridging Visa.
Ms. Nguyen was born in Vietnam in 1977. Her parents were born in 1951 and live in Vietnam, as does one brother with another brother living in Australia. She was granted a Partner 100 Visa on 21/4/11 and arrived in Australia on 31/7/11. She was previously in a de facto relationship from 2006 to 2017 to an Australian citizen, and has son, born 2009, who is an Australian citizen. She became an Australian citizen by grant on 2011.
INFORMATION TO THE TRIBUNAL
Since the Department made a decision, the parties have provided further information to the Tribunal including:-
Report of parties not a true relationship, 13/10/20
Primary and Secondary Applicants Movement Records, 6/7/21
Hearing Response, 13/7/21
Parties joint name Title and details from Conveyancer for purchase of house, June 2018
Parties joint name Strata documents, Emergency Services Levy and Council rates, 2018, 2019, 2020 & 2021
Applicant confirmation of ending of agreement for electricity at Prospect 8/2/21 and transfer to Salisbury Park
Parties joint name electricity and gas accounts, June 2018 to February 2021
Applicant name SA Water accounts, March 2019 to December 2020
16 undated photos of the parties with 2 children and friends
28 photos from 2020 of the parties with children, mother of the sponsor, at business of sponsor and with friends
28 photos of the parties and children with the parents of the applicant during a visit
Parties joint name car registration and renewal
Various documents of parties – proof of Prospect address
Various documents of parties – proof of Salisbury Park address
Migration Agent submission, 29/7/21 & 3/8/21
Parties joint name bank account – selected periods from August 2019 and 25 April 2021 to 22/7/21
Parties joint name car insurance, 2/8/21
4 photos of parties and secondary applicant, including birthday of sponsor January 2021
Is the sponsor an Australia citizen, and Australian permanent resident or an eligible New Zealand citizen?
Clause 820.211(2)(a) requires that at the time the visa application was made the applicant is the spouse or de facto partner of an Australian citizen or Australian Permanent Resident or an eligible New Zealand citizen. The Tribunal accepts the sponsor being an Australian Citizen by grant in 2011.
Whether the parties are in a spouse or de facto relationship
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).
'De facto partner' is defined in s.5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2).
In forming an opinion whether they are in a spouse or de facto relationship consideration must be given 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 r.1.09A(3) which is attached to this decision. Each of the specific matters contained in r.1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.
The Tribunal accepts the documented and photographic evidence of the parties marrying on 28/3/18, with an Australian Certificate of Marriage provided prior to the decision by the Delegate. There is nothing to suggest that the marriage is not valid. 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?
The Tribunal has considered the evidence relevant to the matters in r.1.15A. The Tribunal took into account the available documentary evidence contained on the Department’s file and the evidence provided to the Tribunal.
CLAIMS AND FINDINGS
Financial aspects of the relationship that must be considered include:-
(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 expense
The Tribunal accepts the documented and oral evidence of the parties and determines that at the time of the visa application the parties did not have joint ownership of any real estate of other major assets.
The Tribunal accepts the documented and oral evidence of the parties the home of the parties was purchased in June 2018 and later the purchase of a car and determines at the time of this decision they do have joint ownership of real estate and other major assets.
The Tribunal accepts the oral evidence of the parties that the home purchased jointly in June 2018 was funded approximately 75% by the applicant and 25% by the sponsor, and their own funds used and borrowings were not required.
The Tribunal accepts the oral evidence of the parties that the purchase of the home in June 2018 used up the majority of funds held by the applicant at the time of the relationship commencing.
The Tribunal determines from the documented and oral evidence of the parties that at the time of the visa application and this decision, the parties do not have any joint liabilities.
The Tribunal accepts the documented and oral evidence of the parties that the applicant worked for 10 years in the banking industry in Vietnam before coming to Australia.
The Tribunal accepts the documented and oral evidence of the parties that the sponsor part owns and works in a nail salon, with the applicant having worked in a restaurant and several nail salons and has recently purchased his own nail salon.
The Tribunal accepts the documented and oral evidence of the parties of a joint name bank account operated by the parties from November 2018, into which the income of the applicant and money transfers from the sponsor are deposited, with this account, and cash provided by the sponsor from him work efforts used to provide all household and social needs and determines at the time of the visa application and this decision the parties have and do pool finances for major commitments and the sharing of day-to-day household expenses.
The Tribunal determines from the documented and oral evidence of the parties that at the time of the visa application and this decision, none of the parties has a legal obligation to the other.
Nature of the household aspects that must be considered include:-
(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
The Tribunal accepts the documented and oral evidence of the parties that the sponsor has a son, born in 2009, from a previous relationship, with the son living with his father and being spending time with the sponsor, applicant and secondary applicant approximately two times per month.
The Tribunal accepts the documented and oral evidence of the parties that the applicant has previously been married, and has two children, born 2006 and 2008, with the oldest child living with the applicant and sponsor and the youngest child living in Vietnam with the mother.
The Tribunal accepts the documented and oral evidence of the applicant that he was given custody of his oldest child in the divorce agreement with his previous wife, and that she has provided written permission for the secondary applicant to leave Vietnam and live in Australia.
The Tribunal accepts the oral evidence of the parties that the applicant provides financial support to his youngest child in Vietnam every few months.
The Tribunal accepts the documented and oral evidence of the parties that since the arrival of the applicant and secondary applicant in Australia on 7/2/18 the parties have always lived together, initially in a house owned by the sponsor, then the jointly owned home and since February 2021 in the home owned by the sponsor again.
The Tribunal accepts the documented, photographic and oral evidence of the parties of housework roles and determines, at the time of the visa application and this decision, the parties share responsibility for housework.
Social aspects of the relationship that must be considered include:-
(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
The Tribunal accepts the documented and oral evidence of the parties on the contact the parties have with family and friends and determines, at the time of the visa application and this decision, the parties represented themselves to other people as being married.
The Tribunal accepts the documented, photographic and oral evidence of the parties of their wedding on 28/3/18 and determines, at the time of the visa application and this decision, the parties represent themselves to other people as being married.
The Tribunal accepts the documented and photographic evidence that the parties families and their individual and collective friends, at the time of the visa application and this decision, are extremely supportive of the marriage.
The Tribunal accepts the documented, photographic and oral evidence of the parties of the trip to Vietnam they made in January 2019 to visit their families, including the youngest child of the applicant, and friends.
The Tribunal accepts the documented, photographic and oral evidence of the parties of the one month visit by the parents of the applicant to Australia in June 2019 and that they spent the complete visit living with the parties.
The Tribunal accepts the documented and photographic evidence that the parties have planned and undertaken a large number joint social activities since the relationship began in early 2017 and determines, at the time of the visa application and this decision, the parties plan and undertake joint social activities.
Nature of the commitment to each other that must be considered include:-
(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.
The Tribunal accepts the documented and photographic evidence of the parties first meeting in Australia in March 2017, the friendship developing in late 2017 while each was dealing with the breakdown of their previous relationships, and from early 2018 the parties committed to each other, with their marriage occurring in Australia on 28/3/18.
The Tribunal accepts the documented, photographic and oral evidence of the parties that they have lived together since 7/2/18 when the applicant and secondary applicant came to Australia and determines at the time of this decision the parties have lived together for in excess of 3 years and 6 months.
The Tribunal accepts the documented and oral evidence of the parties of the support the parties have provided to each other and determines, at the time of application and this decision, a high level of companionship and emotional support is provided by each of the parties to the other.
The Tribunal accepts the documented and oral evidence of the parties on their relationship and determines, at the time of application and this decision, the parties have an ongoing commitment to each other, the relationship, their marriage and family.
The Tribunal considered all the evidence on the circumstances of the parties and determines the evidence supports a finding that at the time of the application and this decision, the parties have had and continue to have a mutual commitment to a shared life together as a couple to the exclusion of all others, with the relationship genuine and continuing and they have and continue to live together.
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 and the time of this decision.
Therefore the applicant meets cl 820.211(2)(a) and cl.820.221(1)(a).
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.
Given the findings above, the appropriate course is to remit the application for the secondary visa to the Minister to consider the remaining criteria for a Subclass 820 visa.
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) of Schedule 2 to the Regulations; and
·cl 820.221(1) of Schedule 2 to the Regulations.
Steven Griffiths
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).

[2021] AATA 2860

6 August 2021

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

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