Tran (Migration)

[2021] AATA 3931

Tran (Migration) [2021] AATA 3931 (28 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Thi Yen Tran

VISA APPLICANT:  Mr Duc Thang Nguyen

CASE NUMBER:  1819075

DIBP REFERENCE(S):  BCC2017/2097931

MEMBER:Hugh Sanderson

DATE:28 July 2021

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; and

·cl.309.221 of Schedule 2 to the Regulations.

Statement made on 28 July 2021 at 4:05pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – financial aspects – nature of the household – social aspects – nature of the commitment – age difference – sponsor married on two previous occasions – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 309.211, 309.221

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 Immigration on 27 June 2018 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 13 June 2017 based on his relationship with his sponsor, 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).

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because the delegate was not satisfied the visa applicant was the spouse, as defined in s.5F of the Act, of the review applicant.

   Background

4. The review applicant was born in Vietnam and is currently 48 years old. She has previously been married on two occasions. Her first husband sponsored her for a Partner visa which was granted to her in 1995. She is now an Australian citizen. She divorced her first husband in 1997. She then remarried and sponsored her second husband for a Partner visa. She divorced her second husband in 2005 a year after he was granted a Partner visa. The review applicant claimed that she had an affair with a person who she only described as Mr Hai. She had a child as a result of that relationship, Jessica, who was born in 2007. The visa applicant’s mother and four siblings remain living in Vietnam. She has a sister who lives in Australia.

5. The visa applicant is a citizen of Vietnam and is currently 35 years old. His parents and younger brother live in Vietnam. He has a sister who lives in Australia after she was granted a Partner visa in 2013.

6. It was claimed that the visa applicant’s sister is a friend of the review applicant. As the review applicant was a single mother, the visa applicant’s sister decided that she would introduce the review applicant to her brother as an appropriate partner. The parties started to communicate with each other in March 2016. The review applicant and her daughter travelled to Vietnam and the parties met for the first time on 14 June 2016. It was claimed the visa applicant stayed with the review applicant and her family over the time that the review applicant was in Vietnam.

7. The parties claimed that despite the age gap, they felt very happy with each other. They claimed they had many things in common, such as being Catholic, similar hobbies, similar tastes in music, and the fact that neither of them drank alcohol or gambled. They claimed they had the support of their families to get married. The parties decided they would get married and the review applicant returned to Vietnam in April 2017. They held a celebration for their marriage with friends and family on 2 April 2017 and registered their marriage with the authorities in Vietnam on 20 April 2017.

8. Since their marriage, the review applicant has travelled overseas as follows:

   ·From 24 March 2017 to 28 April 2017;

   ·From 22 March 2018 to 14 April 2018; and

   ·From 11 December 2019 to 11 January 2020.

9. The applicant provided various documents in support of the application including a statement from the visa applicant’s sister in Australia claiming she believed the relationship was genuine. Photos were provided of the parties together. The visa applicant was interviewed by an officer from the Department.

10. The delegate who considered the application noted the following issues:

    ·There was little information as to the financial aspects of the relationship;

    ·The parties provided evidence that they had registered at each other’s households in Vietnam and stayed together in hotels, however, there was nothing to indicate they had established a household indicative of a genuine relationship;

    ·The parties had provided photos of themselves together in Vietnam;

    ·When interviewed, the visa applicant made comments which questioned his commitment to his relationship with the review applicant including:

    ohe stated that he had not introduced the review applicant to any of his friends prior to their marriage;

    oalthough claiming they were both Catholics, he stated that they did not get married in the Catholic Church because they were planning to get married in a Catholic Church in Australia, but was not able to provide any details of this;

    oinconsistent information was provided as to whether the review applicant’s father’s alter was in her family’s home in Vietnam; and

    ohe was unable to provide any explanation as to why his sister did not attend the wedding;

    ·There was limited information of any continuing social interaction between the parties;

    ·The quick development of the relationship, particularly when the review applicant claim she had two unsuccessful relationships, raised questions as to the genuineness of the relationship or their commitment to the relationship; and

    ·The parties were not able to provide any details as to the other person’s life.

11. Taking these matters into account, the delegate was not satisfied the parties were in a genuine and continuing relationship. The delegate found the visa applicant was not the spouse, as defined in s.5F of the Act, of the review applicant and therefore did not meet the criteria in cl.309.211 and refused the application.

    Information to the Tribunal

12. The applicant provided further information to the Tribunal including the following:

    ·Photos of the parties together in Vietnam;

    ·Tax returns of the review applicant identifying the visa applicant as her spouse;

    ·Temporary residence registration for the review applicant to live with the visa applicant;

    ·Evidence of the visa applicant sending money to the review applicant;

    ·Records of telephone calls between the parties;

    ·Receipts for the purchase of various items of personal property; and

    ·Cards and other correspondence between the parties.

13. The review applicant appeared before the Tribunal by MS Teams video on 28 July 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and the visa applicant’s sister. The review applicant was represented in relation to the review by her registered migration agent who attended the hearing.

14. The parties provided consistent information as to various aspects of their lives and their relationship. This included details of their financial arrangements, their work, the contact they have with each other and their interaction with other members of their families.

15. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in the present case is whether the visa applicant is the spouse, as defined in s.5F of the Act, of the review applicant.

    Whether the parties are in a spouse or de facto relationship

17. 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. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

18. ‘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. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP[2017] FCAFC 206.

    Are the parties validly married?

19. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties were married in Vietnam and registered their marriage there on 20 April 2017. There is nothing to indicate 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?

    Financial aspects

20. There is little information as to the financial aspects of the parties’ relationship. This is not surprising as the parties live in separate countries and neither the review applicant nor the visa applicant have any significant assets of their own and, therefore, they do not jointly own any assets or have any shared liabilities. As set out above, the review applicant has travelled to Vietnam since their marriage and they have spent time together. Over this time, the parties shared their expenses. The parties were able to provide details of each other’s work indicating an appreciation of each other’s financial circumstances.

21. Although limited, the claims as to the financial aspects of the parties’ relationship is consistent with the fact that the parties do not have any significant assets of their own and they live in separate countries. When together, they have shared their expenses. The Tribunal places little weight on this aspect of their relationship when considering whether the parties are in a genuine and continuing relationship.

    Household

22. Since their marriage, the review applicant has travelled with her daughter to Vietnam on two occasions to spend time with the visa applicant. In light of the financial circumstances of both parties and the obligation of the review applicant to care for her daughter and work, the number of trips the review applicant has made to Vietnam is consistent with the review applicant wishing to spend as much time as possible with the visa applicant. Over the time that the review applicant has travelled to Vietnam the parties lived together either in the home of the review applicant’s mother or in the home of the visa applicant’s parents. They have also travelled together with the review applicant’s daughter to stay in Saigon and Vung Tau. The visa applicant has participated in the care and support of the review applicant’s daughter and is aware of aspects of her life showing a concern and interest in the review applicant’s daughter.

23. Although limited, due to the fact that the parties live in different countries and have restricted capacity to stay together in Vietnam, the Tribunal is satisfied that the parties when together have made arrangements to live together and share the responsibility for the care and support of the review applicant’s daughter. The limited personal contact the parties have been able to arrange to have with each other is indicative of their living together in a genuine and continuing relationship with a mutual commitment to a shared life as husband and wife to the exclusion of all others.

    Social aspects

24. The parties provided numerous photos of themselves together in Vietnam. This included photos from their wedding ceremony and attending other social functions. The parties attended the wedding of the review applicant’s nephew in Vietnam indicating the recognition of their relationship by the review applicant’s family. The visa applicant’s sister in Australia has provided a statement in support of the application. She is a friend of the visa applicant through their involvement with the church they both attend.

25. The visa applicant and his sister provided consistent information as to the reaction of the visa applicant’s parents when it was first suggested that the visa applicant would be marrying the review applicant. The fact that the review applicant was 12 years older than the visa applicant, had been married on two previous occasions and had a child out of wedlock was an issue that may have caused concern for practising Catholics in Vietnam. The visa applicant and his sister gave consistent responses when asked about the reaction of their parents to the proposed marriage which indicated they were supportive of it.

26. The Tribunal accepts that when the review applicant has travelled to Vietnam with her daughter that she has participated in various social activities with the review applicant and his family. Although both parties are Catholics, they did not get married in the Catholic Church in Vietnam. It was explained that as they would require approval from the Catholic Church in Vietnam that this would take considerable time and the review applicant was not able to remain in Vietnam with her daughter to obtain that approval. The parties gave consistent information of the fact that the review applicant and the visa applicant’s sister have approached their local priest in Sydney to ensure that they would be able to obtain the blessing of the Catholic Church in Sydney at the church the review applicant attends once the visa applicant is able to come to Australia.

27. The Tribunal is satisfied that the parties represent themselves as being married to each other and that their relationship is recognised and accepted by their friends and family. The parties plan to celebrate their wedding in Australia by having it blessed in the Catholic Church which the review applicant attends. The Tribunal finds that the social aspects of the relationship supports a finding that the parties intend to live together in a genuine and continuing relationship and that they have a mutual commitment to a shared life as husband and wife to the exclusion of all others.

    Commitment

28. The parties were first introduced to each other in March 2016 by the visa applicant sister. She is a friend of the review applicant and they attend the same church and sing in the same choir together. Based on the visa applicant’s sister’s opinion of the review applicant, she believed that parties would make a good match despite the age difference in the parties and the fact that the review applicant had been married on two previous occasions. The parties met each other in person in June 2016 when the review applicant travelled to Vietnam with her daughter to spend time with the visa applicant. Their relationship developed after that time and they were married on 20 April 2017. They have been married now for four years.

29. At the hearing, the parties provided consistent information as to various aspects of their relationship and their plans for their future. This supported a finding that the parties are in regular communication with each other and provide each other the degree of companionship and emotional support which would be expected in a genuine and continuing relationship. The parties were able to address issues and concerns as to their relationship including the age difference between the visa applicant and the review applicant. One of the concerns they have is that they would like to have a child together and appreciate the fact that as the review applicant is now aged 48 years of age she is approaching a time when she may not be able to conceive a child. The fact that the parties have discussed this issue indicates the degree of emotional support they provide to each other.

30. Overall, the Tribunal is satisfied that the parties provide each other the degree of companionship and emotional support which would be expected in a genuine and continuing relationship. Their plans for their future together indicate they consider their relationship as long-term and that they have made arrangements to live together in Australia. The supports a finding that the parties are in a genuine and continuing relationship and have a mutual commitment to a shared life as husband and wife to the exclusion of all others.

    Overall assessment

31. The Tribunal has considered all the information before it both individually and cumulatively. The Tribunal is satisfied that the weight of evidence supports a finding that the parties intend to live together and were at the time of the application and continue to be in a genuine and continuing relationship with a mutual commitment to a shared life as husband and wife to the exclusion of all others.

32. For the above reasons, the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made and at the time of this decision. Therefore, the visa applicant meets cl.309.211 and cl.309.221.

33. 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 309 visa.

    DECISION

34. 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; and

    ·cl.309.221 of Schedule 2 to the Regulations.

    Hugh Sanderson
    Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (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).