Tran (Migration)

[2020] AATA 2887

Tran (Migration) [2020] AATA 2887 (26 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Anh Dung Tran

VISA APPLICANT:  Ms Thu Cuc Tran

CASE NUMBER:  1614361

DIBP REFERENCE(S):  OSF2015070571

MEMBER:Helen Kroger

DATE:26 May 2020

PLACE OF DECISION:  Melbourne

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(2) of Schedule 2 to the Regulations

Statement made on 26 May 2020 at 4:14pm

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 –copy of Marriage Certificate provided – 10 year duration of the relationship –applicants are currently in a genuine spousal relationship– marriage is valid for the purposes of the Act– decision under review remitted

LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, r 1.15, Schedule 2, cl 309.211

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 17 August 2016 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 10 August 2015 on the basis of her relationship with her 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). 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.309.211(2) of Schedule 2 of the Regulations because he/she did not believe the parties were in a genuine and continuing relationship.

4. The review applicant seeks review of the delegate’s decision and for that purpose provided a copy of the primary decision to it.

5. The review applicant appeared before the Tribunal on 19 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, Ms Thu Cuc Tran, Mr Thanh Tam Vo (friend), Ms My Tran, (‘aunt-in-law’) and Ms To Em Thi Tran (friend).

6. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the parties are in a genuine and continuing spousal relationship as prescribed by section 5F of the Act.

   Whether the parties are in a spouse or de facto relationship

9. Clause 309.211(2) requires that at the time the visa application was made, 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.

10. ‘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?

11. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal has before it a certified and signed copy of the Marriage Certificate that shows that the parties were married on the 6 June 2010, at a private residence in Braybook, Victoria. There is no evidence before the Tribunal to suggest that the document is not genuine. 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?

12. Regulation 1.15A(3) provide relevant factors for determining whether a de facto or spouse relationship exists.  These factors are (a) the financial aspects of the relationship; (b) the nature of the household; (c) the social aspects of the relationship; and (d) the nature of the person’s commitment to each other.

13. Both parties provided oral evidence at the hearing to support their claim along with documentation submitted prior to the hearing and evidence previously submitted to the Department to support the visa application. 

    The Financial Aspects of the Relationship

14. The Tribunal must consider all the financial aspects of the relationship including any joint ownership of real estate or other major assets; any joint liabilities; the extent of any pooling of financial resources (especially in relation to major financial commitments); whether either person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day to day household expenses.

15. The review applicant and visa applicant provided documentary evidence, through their lawyer, prior to the hearing including copies of numerous money transfers that show transactions of AUD$400 from the sponsor to the applicant for the period from March 2015 to April 2020. These transaction documents support the sponsor’s claim he made during the hearing that he sends $400 per month to the applicant to financially support her.  The parties claim that the applicant works in a factory as a tailor and earns the equivalent of $300 per month. The sponsor works at Prydes Confectionary, and indicated he receives $710 per week after tax. He explained that he continues to provide maintenance to his first wife and youngest son of $930 per month.

16. The parties provided copies of a Westpac Joint Account that stands in both their names and a copy of a Westpac Joint Reward Saver Account that they explained during the hearing was used as a term deposit. They indicated that since the sponsor’s return to Vietnam, that she does not deposit monies into these accounts as she does not earn enough to enable her to do this. The parties hold a Westpac Joint Home Mortgage account that they were invited to speak to during the hearing. This mortgage account applies to a property that the parties purchased in both of their names that is rented, with a view to it becoming the parties’ home. The evidence before the Tribunal indicates that this is owned on a ratio split of 80/20. That is to say, that the sponsor owns 20% and the applicant 80%. The parties were invited to explain why the ownership structure and title for the property was set up in this way. The parties claim that the sponsor was previously a ‘gambler’ who associated with ‘bad people’ and this was the reason why his first wife left him. Both parties individually and consistently submitted that they agreed to set up the purchase of the property, with financial support from the applicant’s sister, to safeguard the property and protect money saved. The sponsor borrowed $50,000 from the applicant’s sister to pay the house deposit and legal fees and told the Tribunal that he has repaid $25,000 to date.

17. The Tribunal has carefully considered all the evidence before it including the consistent claims provided by the parties during the hearing and the way in which they share their financial circumstances, with particular regard to the arrangements made in relation to the property as outlined above.

18. Accordingly, the Tribunal gives significant weight to their financial arrangements and finds that they share responsibility for the management of the financial aspects of the relationship.

    The Nature of the Household

19. In assessing the nature of the household, the Tribunal gives weight to evidence of joint responsibility or shared responsibility for housework and chores, for the care and support of any children (where relevant), and the living arrangements of the parties.

20. The parties claim they were engaged on 27 March 2010, and that the sponsor moved in with the applicant in her sister’s house and married on 6 June 2010. The parties claim that they rented one room from the applicant’s sister and as such, lived in shared accommodation arrangements. They told the hearing that the sponsor did ‘handyman’ chores around the house and that the applicant cooked and cleaned. The parties purchased a property in Kings Park that is referenced above, and both their names appear on copies of service invoices submitted to the Tribunal. In oral evidence submitted during the hearing, the parties consistently claimed that the sponsor financially supported the applicant and that due to her modest income, made no deposits into their joint accounts and that regular money transfers were provided to cover her day to day expenses in Vietnam. In considering this oral evidence, the Tribunal has considered the financial arrangements as attested by the parties during the hearing, and finds that this evidence is not consistent with their “Answers to the Allegations of the Decision Maker” (folio 172) where the parties claim through their lawyer that :

    “The bills were incurred under an Account in joint names. Accordingly it is respectfully submitted that both Dung and Cuc are jointly and severally responsible for the payment of same.”

21. The Tribunal has carefully considered the above claim along with their explanation regarding the financial support provided by the sponsor to the applicant that supplements her income in order to cover her expenses and finds that the bills that are accounted for under the names of both parties do not necessarily indicate that the parties are jointly responsible, given that the sponsor assumes responsibility for the payment of bills and therefore gives no weight to this claim in regard to joint responsibility for current household bills. 

22. The Tribunal has considered all the evidence before it, with particular regard to the oral submissions and the shared accommodation arrangements that the parties had with the applicant’s sister during the time that they claimed to live together in Australia. The Tribunal finds that the parties shared some aspects of the nature of the household before the applicant returned to Vietnam whilst finding that the shared accommodation arrangements limited their individual and cumulative contributions given that they shared the household with other persons.

    The Social Aspects of the Relationship

23. In assessing the social aspects of a relationship, the Tribunal must have regard to all the social circumstances of the relationship including whether the parties represent themselves as a couple to other people as being married to each other; the opinion of the parties’ friends and acquaintances about the nature of the relationship and any basis on which the parties plan and undertake joint social activities.

24. The sponsor has four adult children to a previous wife and claims to have introduced them to the applicant. In their submissions, the applicant explained that she had greater contact with the younger son, as his father shared fortnightly contact with him when they lived together in Australia. Whilst the sponsor indicated that the 16 year age gap between them was not an issue with the sponsor’s children, there is little indication before the Tribunal to demonstrate any level of interaction with his elder children. The parties have submitted evidence that indicates that they rented one room in the home of the applicant’s sister and lived with her.  The parties were initially introduced to each other through this sister, as the latter worked at the same poultry factory as the sponsor. After introducing them, the sponsor would provide the applicant a lift to the poultry factory where she worked evening shifts, whilst her sister worked during the day.

25. The parties have provided photos of them with friends and families, including the wedding ceremony that was held in Vietnam in 2015. The applicant explained to the Tribunal that this ceremony was held, notwithstanding the time lapse from when they were married in Australia in 2010, so that they could appropriately be introduced to family and friends. Evidence before the Tribunal indicates that there were around 150 attendees to the ceremony.   

26. The parties provided copies of travel documentation, including boarding passes, that show a holiday that they took to Thailand in 2013. The evidence before the Tribunal indicates that the sponsor has not travelled outside Australia since October 2017 and the applicant has not travelled to Australia since her departure in 2015. The Tribunal has considered the oral evidence from the three witnesses who presented at the hearing, who supported the claims of the parties.

27. The Tribunal has given careful regard to the evidence before it in relation to the social aspects of the relationship and how they present themselves to other parties and finds that the parties represented themselves as a married couple when they lived together in Australia and following the applicant’s return to Vietnam, when they held a wedding ceremony in Vietnam in 2015.

    The Nature of the Person’s Commitment to each other

28. In assessing commitment to each other, the Tribunal must have regard to the duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the parties draw from each other and whether the persons see the relationship as a long term one.

29. The parties confirmed to the Tribunal that they met in July 2009 in Victoria when the visa applicant was living in Melbourne on a student visa. The parties met when working in the same poultry factory, and the review applicant (sponsor) gave her a lift to work. The parties were introduced by the applicant’s sister, who was working the day shift and the applicant was employed to work the night shift, and therefore asked the sponsor whether he could give her a lift.

30. The parties claim to have become engaged on 20^th March 2010 and indicated that they got engaged as the sponsor wish to become married, an event they proceeded with on 6 June 2010. The partied held a wedding ceremony on 27 February 2015 and provided photos to the Tribunal of this event. They submitted that the ceremony was attended by 150 people in Vietnam, and the ceremony was held as it was a tradition to show everyone that they are husband and wife and that they love each other officially. The ceremony was held 5 years after they were initially married in Australia and the parties indicated that this period of time elapsed as it was important to invite all the relatives of the bride and groom and that the sponsor and applicant needed time to save for the event.

31. The visa applicant previously applied for an on-shore partner visa on 7 July 2010, an application that was refused by the delegate and unsuccessfully appealed to the Migration Review Tribunal. The applicant subsequently moved off-shore to apply for an off-shore partner visa, a consistent pattern of behaviour that is indicative of genuine and enduring relationship. The sponsor last visited the applicant in 2017 in Vietnam and whilst continuing to support her financially, calls her regularly after work to keep in contact. The parties speak via facetime, his landline and messaging. The parties have indicated that they earn relatively modest incomes and that these incomes are managed in such a way that they can direct payments to the financing of the mortgage, repayments to the applicant’s sister, whilst supporting both parties financially individually.

32. The parties indicated at the hearing that they maintain regular dialogue which allows them to maintain an interest and engagement in what each other does whilst providing emotional support. The applicant indicated during the hearing that she is interested in having children with the sponsor.

33. The Tribunal has considered the nearly 10 year duration of the relationship and their efforts since the applicant’s return to Vietnam to stay in contact and the sponsor’s continued endeavours to actively support the applicant. The parties responses to the Tribunal were consistent and the Tribunal is satisfied that the parties were genuine in their responses.

34. In view of all the above, the Tribunal is satisfied that there is public recognition of the parties’ relationship. The Tribunal is satisfied by the parties’ oral evidence at the hearing that they demonstrate a sound knowledge of each other’s lives which is commensurate with a couple in a genuine and on-going spousal relationship. In respect of whether there is a mutual commitment to a shared life as husband and wife to the exclusion of all others, the Tribunal accepts the oral evidence as presented at the hearing.

    FINDINGS

35. The Tribunal is satisfied that the parties’ marriage is valid for the purposes of the Act as required by s.5F(2)(a).

36. The Tribunal is satisfied that at the time of application the review applicant and the applicant had a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing. They therefore meet the requirements of s.5F(2)(b) and s.5F(2)(c) for a married relationship.

37. The Tribunal is also satisfied that at the time of application the parties meet the requirement of s.5F(2)(d) for a married relationship, in that they do not live separately and apart on a permanent basis.

38. For these reasons the Tribunal is satisfied that at the time the visa application was made that the parties were in a married relationship within the meaning of s.5F(2) of the Act. Accordingly, at the time of the visa application, the applicant wa the spouse, within the meaning of s.5F of the review applicant, who is an Australian citizen, and meets the requirements of cl.309.211(2) of Schedule 2 to the Regulations. Therefore, cl.309.211 is met.

39. Given the above, the Tribunal remits the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.

    Helen Kroger

    Member

    1.   

    any joint ownership of real estate or other major asseHelen Kroger

    
    

    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).