TRAN (Migration)

[2020] AATA 336

TRAN (Migration) [2020] AATA 336 (7 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr VAN HOANG TRAN

VISA APPLICANTS:  Mrs THI THANH TUYEN PHAM
Mr PHAM HAI DUONG NGUYEN
Mr PHAM ANH KHOA NGUYEN
Miss HA VI NGUYEN

CASE NUMBER:  1819781

DIBP REFERENCE(S):  BCC2017/2254141

MEMBER:Steven Griffiths

DATE:7 February 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211 of Schedule 2 to the Regulations

·cl.309.221 of Schedule 2 to the Regulations

Statement made on 07 February 2020 at 2:11pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) – Subclass 309 (Spouse (Provisional)) – genuine spousal relationship – certificate of marriage provided – evidence provided – money transfers – birthday cards – mutual commitment – relationship is genuine and continuing – decision under review remitted  

LEGISLATION

Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), Schedule 2 cls 309.211, 309.221, r 1.15A(3)

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 1 June 2018 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant (the visa applicant), Mrs. Thi Thanh Tuyen Pham, applied for the visa on 26 June 2017 on the basis of their relationship with their sponsor, the review applicant, Mr. Van Hoang Tram. 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) because the delegate was not satisfied the applicant was the spouse, as defined in s.5F of the Act, of the sponsor.

4. The sponsor appeared before the Tribunal on 7 February 2020 to give evidence, respond to questions and present arguments. The Tribunal also received oral evidence from the visa applicant and a friend of the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.  

5. The sponsor was represented by his registered migration agent, who attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal has taken into consideration all the evidence in the Department of Immigration file, the Tribunal file including additional information provided by the applicants and the evidence from the Tribunal hearing.

   ISSUE

8. The issue in the present case is whether the applicant is the spouse, as defined in s.5F of the Act, of the sponsor.

   BACKGOUND OF THE EVIDENCE

9. Mr. Tran was born in Ben Tre, Vietnam in 1960. His parents are deceased and he has 3 sister and 3 brothers, born between 1955 & 1972, living in Vietnam other than 1 brother in Australia. He arrived in Australia on 24/11/86 and became an Australian citizen by grant on 5 October 1989. He married in 1993, had no children and divorced in 1995.   

10. Mrs. Pham was born in Ho Chi Minh City, Vietnam in 1978. Her parents deceased and she has 4 brothers and a sister, born between 1981 & 1994, all living in Vietnam. She married in 1999, has 3 children, who are all secondary applicants, born 2001, 2007 & 2010, and divorced in August 2015.

    INFORMATION TO THE TRIBUNAL

11. Since the Department made a decision the sponsor has provided further information to the Tribunal including:-

    Statutory Declaration by Sponsor

    Migration Agent Submission

    Money Transfers 22/7/17 $ 400, 21/10/17 $ 400, 31/12/17 $ 500, 14/2/18 $ 400 & 30/5/18 $500, 29/4/19 $ 500, 9/5/19 $ 500, 20/5/19 $500, 22/6/19 $ 500, 2/12/19 $ 1000, 10/2/19 $500, 27/12/19 $ 500, 8/1/20 $ 1000 & 13/1/20 $ 500 – total of $ 7700

    Birthday Cards

    Hotel receipts

    Resident Registration

    Sponsor travel to Vietnam

    175 photographs of parties including wedding, on holidays, with children and family, food shopping, at airport, birthday party, at beach and gardening

    Form 888 statement by Loan Thi Nguyen, friend of sponsor, 5/2/20

    Is the sponsor an Australia citizen, an Australia permanent resident or an eligible New Zealand citizen?

12. Clauses 309.211(2) and 309.221 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. The Tribunal accepts the documented evidence of the sponsor becoming an Australian Citizen by grant on 5 October 1989. 

    Whether the parties are in a spouse or de facto relationship

13. ‘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).

14. 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 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?

15. At the time the visa application was made the visa applicant provided evidence of being married to the sponsor with a Socialist Republic of Vietnam Certificate of Marriage 16 August 2016. 

16. The Tribunal has regard to the document and finds that the parties are married to each other at the time of the visa application and this decision, with the marriage valid for the purposes of the Act as required by s.5F(2)(a).

    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

17. The Tribunal determines, from the documented and oral evidence provided, at the time of the visa application, no real estate or other major assets was or is owned jointly by the parties.

18. The Tribunal determines, from the oral evidence provided, that at the time of the visa application and this decision, no joint liabilities were or are held by the parties.

19. The Tribunal determines, from the oral evidence provided, that at the time of the visa application and this decision, none of the parties has a legal obligation to the other.

20. The Tribunal notes the sponsor is market farm owner and operator in Virginia, South Australia.    

21. The Tribunal notes the applicant is sales assistant for a bread store in Saigon, Vietnam.  

22. The Tribunal accepts the documented and oral evidence, confirmed by the parties independently, money transfers from the sponsor to the visa applicant from 2016 to 2020 being made, at the timing and amount determined by the sponsor without being requested, to the applicant and children with living expenses and education costs, and determines at the time of the visa application and this decision, these money transfers to represents the pooling of financial resources and the sharing of day-to-day household expenses.

23. The Tribunal accepts the documented and oral evidence, confirmed by the parties independently, of the sponsor paying for the majority of the costs of the parties during the time he was in Vietnam with the applicants, noting the visa applicant also contributed, and determines at the time of the visa application and this decision, these payments represents the pooling of financial resources and the sharing of day-to-day household expenses.

    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

24. The Tribunal accepts the documented, photographic and oral evidence of the visa applicant having 3 children, born 2001, 2007 & 2010, from a previous marriage, with the children being under the full time care of the applicant since the initial departure of their father in 2008 from the family home.   

25. The Tribunal accepts the documented and oral evidence of the parties of the roles undertaken on behalf of and with the 3 children by the parties, and the involvement of the sponsor in decisions made on issues impacting on the children when the parties are apart, and determines the parties have joint responsibility for the care and support of the children.

26. The Tribunal accepts the photographic, documented and oral evidence of the parties, of living in different countries with the sponsor travelling to Vietnam 4 times to be with the applicant and children for a total of 56 days spent together since July 2016.  

27. The Tribunal accepts the oral evidence from the parties, confirmed independently, on the household arrangements when the parties are together in Vietnam and determines, at the time of the visa application and this decision, the parties share responsibility for housework.

28. The Tribunal accepts the documented and oral evidence of the parties that if allowed the live in Australia the visa applicants will live with the sponsor in the house on his farm. 

    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

29. The Tribunal accepts the photographic, documented and oral evidence of the parties marrying in August 2016 in Vietnam, with 50 guests being representatives of both families in attendance, and determines at the time of application and this decision the parties have and do represent themselves to other people as being married to each other.

30. The Tribunal accepts the oral evidence of the parties of their marriage involving only family as both had previously been married and the age of the parties.

31. The Tribunal accepts the documented and photographic evidence of family and friends of the parties and determines, at the time of application and this decision, other people are supportive of the relationship and marriage.

32. The Tribunal accepts the documented, photographic, oral evidence of the parties on planning and undertaking joint social activities in India and Australia and determines these activities to have represented, at the time of the visa application and this decision, that 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.

33. The Tribunal accepts the evidence of the parties initially met in Vietnam at the wedding of relatives in November 2015, developing the relationship by regular telephone with the sponsor proposing in May 2016 and the parties becoming engaged, with an Engagement Ceremony held on 12 July 2016 and Wedding on 16 August 2016, all in Vietnam.  

34. The Tribunal accepts the photographic, documented and evidence of the parties that the sponsor and applicant have lived together for 56 days, while noting the parties live in different countries and the work responsibilities of the sponsor have not made it possible for him to spend more time out of Australia and be with the applicant and children.  

35. The Tribunal accepts the oral evidence of the parties of plans for their future together in Australia.    

36. The Tribunal accepts the oral evidence of regular contact between the parties and determines that at the time of application and this decision the parties provide a significant level of companionship and emotional support to each other.  

37. The Tribunal determines that the parties, at the time of application and this decision, have had and continue to have an ongoing commitment to each other and see the relationship and marriage as being long-term.

    Any other circumstances

38. The Tribunal notes the sponsor was married from 1993 to 1995, while the visa applicant  married in 1999 and did not have a good relationship with her husband due to his drinking and gambling, separating initially in 2008 and permanently in 2011, while divorcing in 2015.

39. The Tribunal considered all the evidence on the circumstances of the parties and determines that 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 married couple to the exclusion of all others, with the relationship genuine and continuing.

40. The Tribunal accepts that the parties have been in a committed relationship since May 2016, married in August 2016 and do not live separately and apart on a permanent basis. 

41. 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 the time of this decision.

42. Therefore the visa applicant meets cl.309.211 and cl.309.221.

43. The Tribunal considers the secondary applicants should be reconsidered in light of its decision on the primary applicant.   

44. 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

45. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.211 of Schedule 2 to the Regulations

    ·cl.309.221 of Schedule 2 to the Regulations

    Steven Griffiths
    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).