Tran (Migration)

Tran (Migration) [2024] AATA 748 (27 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Thi Phuong Thao Tran
VISA APPLICANTS:  Mr Hieu Nguyen
Ms Hoang Phuong Vy Nguyen
Mr Hoang Gia Phuc Nguyen
REPRESENTATIVE:  Ms Jennifer Nguyen
CASE NUMBER:  1918421
DIBP REFERENCE(S):  BCC2018/4011685
MEMBER:Namoi Dougall
DATE:27 March 2024
PLACE OF DECISION:  Sydney
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(2)(a) of Schedule 2 to the Regulations.
·cl.309.221(1)(a) of Schedule 2 to the Regulations.

And the secondary applicants meet the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl.309.311.

Statement made on 27 March 2024 at 10:49am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – review applicant’s visits to Vietnam – lengthy relationship – money transfers and gifts – joint household arrangements – social recognition of the relationship – evidence of communication – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 309.211, 309.221, 309.311; r 1.15
CASES
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 on 24 May 2019 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (the Act).
The first named visa applicant (the visa applicant) applied for the visa on 29 June 2018 on the basis of their relationship with their 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.
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 on the evidence that there was a genuine and continuing relationship.
The review applicant appeared before the Tribunal on 26 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Hieu Nguyen (the visa applicant) and the second named applicant.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the visa applicant is a spouse, as defined by the legislation, of his sponsor, Mrs Thi Phuong Thao Tran (the review applicant) and, therefore meets the requirements of cl 309.211(2) at the time of the applicant and cl.309.221 at the time of this decision.
The applicants’ background and migration history
The visa applicant was born in 1964 and is a national of Vietnam. He has two children from his previous marriage, the secondary applicants and his three brothers who live in Vietnam. The visa applicant was previously married to Thi Lien Tan from 13 November 2002 to 27 December 2013. The secondary applicants are the children of this marriage. The Department was provided with the divorce order made by the People’s Court District 8, HCMC on 19 December 2013.
The review applicant was born in 1969 and is a national of Vietnam. Her mother and sister live in Vietnam. The review applicant was previously married to Mr Pham Hong Thach from 1995 until 29 November 2005, there is one child, a daughter, from the marriage who lives in Australia. The Department was provided with the divorce order made by the People’s Court District 8, HCMC on 29 December 2005. The court order states that the review applicant and her former spouse did not register their marriage.
The review applicant first entered Australia on 24 June 2015 on a Subclass 600 visa and departed on the same visa on 22 September 2015. The review applicant next entered Australia on 7 August 2016 on a Subclass 143 visa granted on 25 July 2016. This visa was valid until 7 October 2021. The review applicant departed and entered Australia a number of times on this visa.
On 7 October 2021 while in Australia the review applicant was granted a Subclass 155 visa.
The visa applicant has not been to Australia. However, one of the secondary applicants, Ms Hoang Phuong Vy Nguyen entered Australia on 13 June 2017 and then departed on 3 July 2017 on a Subclass 600 visa.
Initial meeting and development of their relationship
Evidence provided to the Department
The visa application stated that they first met in 2014 in Ho Chi Minh City (HCMC) and that they made a commitment to a shared life to the exclusion of all others on 22 April 2018.
Provided to the Department as part of the visa application were relationship statements from the applicants, both are undated but the visa applicants statement was translated on 22 June 2018. Further, the applicant was interview by a delegate of the Department on 19 December 2019. What was stated in relation to the development of their relationship and marriage by the visa applicant is set out in the dot point paragraphs while what the review applicant stated is set out in the non-dot point paragraphs set out below.
·The applicants had known each other for a while as they lived near to each other. However, the decisive moment that led to them marrying was when both of them joined a gymnastic and sports association in Da Nam Park.
The review applicant had seen the visa applicant a few times before he started to talk to her when they accidentally met in Da Nam Park. Her initial impression was not outstanding, but she had noted that he was an active person and an active member of the association.
·When they met a beautiful friendship developed so they often met and talked to each other. They had simple moments together in the park or having coffee. They began to understand each other and started having more intimate conversations about life, marriage and family. He felt comfortable sharing information with her.
The visa applicant was very passionate about asking her out for exercise and taking care of her or picking her up. Seeing he was sincere she responded to him. They started to get used to each other and became friends. Their loneliness was the main factor pulling them together. They started to meet for coffee and went out and they gradually became closer. When they started to trust each other they shared more intimate details about their lives.
·He had been unsuccessful in love. When he was with the review applicant, he saw her openness and this made him happy. He felt emotion for her. However he did not realise he loved her until she moved to Australia. He missed her every day and could not stand it anymore, so he confessed his love for her and was happy that she had the same emotion. The visa applicant was there when she needed someone and her feeling for him increased.
After the review applciant had been in Australia for a while he confessed to her his love and she was happy and did the same.
·The feelings have grown over the years. They had grown very close and on 9 June 2017 the review applicant surprised him by coming to Vietnam to visit him. He could not believe when he saw her outside his house.
Their feelings grew and she decided to surprise hm by returning to Vietnam to surprise him.
·Even though the review applicant loved the visa applicant she was shy and did not tell him about her feelings but moved to Australia.
·She had given meaning to his life and he was concerned about the prospect of having to live apart again when she returned to Australia. With that in mind he proposed to her on Valentine's Day 2018.
The applicants had a happy time together and the visa applicant proposed to her on Valentine’s Day 2018.
·On 19 April 2018 their marriage was registered. They had a small wedding on 22 April 2018 at the queen Plaza restaurant. In attendance were close family and friends.
On 22 April 2018, the applicant had the wedding she expected with the blessing of family and friends.
The visa applicant was interview on 19 February 2019 (the interview) and stated, amongst other things, the following:
·The applicants first met in the middle of 2014 when thy attended the sports club at Da Nam Park, they chatted and got acquainted. Once they got to know each other, they had feelings for each other. He disclosed his love for her when she migrated to Australia.
·The review applicant migrated to Australia on 7 August 2016. He saw her off at the airport and showed the interviewing officer a photograph.
·After discussing the dates of their wedding, the visa applicant started that from the middle of 2014 until the review applicant left to go to Australia, they saw each other nearly every day. At the time the review applicant left for Australia he would describe their relationship as close friends. They would go out for coffee or to eat, often after sport in the morning with and without his children and sometimes with mutual friends. No photos were taken. The visa applicant would often visit her sister and mother. The visa applicant lived with them and her sisters 3 children. No photos were taken as they were friends only.
·The visa applicant disclosed his love for the review applicant on 20 October 2016.
·The review applicant travelled to visit him on 9 June 2017, and they started their relationship on 14 February 2018 when he phoned her and asked her to marry him and she accepted.
·The review applicant returned to Vietnam in March 2018, and they registered their marriage on 19 April 2018. Their wedding was on 22 April 2018.
·He is living with his brother and has done so since November 2018. Prior to that he lived at a different address with his children. His parents are deceased.
·He first disclosed that he loved her in October 2016. The first person to know about their love was the review applicant’s sister. The review applicant then informed her daughter.
·The visa applicant met the review applicant’s daughter in 2015 and 2017 when she returned to Vietnam. The daughter stayed from January to February 2017 for Tet holiday. No photos were taken.
Departmental records indicate that the review applicant departed and entered Australia during the following periods: 29 June 2017 to 5 August 2017; and 22 March 2018 to 9 June 2018.
The Department was provided with photos of the applicants’ wedding and receipts for wedding services.
Evidence provided to the Tribunal
Provided to the Tribunal was a statutory declaration of the review applicant declared on June 2023 (the review applicant’s statutory declaration) in which the review applicant stated as follows:
·She is currently a permanent resident of Australia having moved to Australia from Vietnam in 2016.
·She married the visa applicant on the 19 April 2018 and had the wedding ceremony on the 22 April 2018.
·The applicants first met each other in 2018 during regular exercise at Da Nam Park near their homes. Their relationship started as friends, and they became closer overtime. They started to go out for coffees together and shared a lot about their lives.
·In August 2018 she migrated to Australia to live with her daughter. The review applicant confessed his feelings for her in October 2016. Their relationship was long distance but was sweet and gentle.
·In June 2017 he decided to surprise the visa applicant by returning to Vietnam without telling him. He was overwhelmed and happy.
·On 14 February 2018 the visa applicant proposed to her, and they planned for the wedding when she returned to Vietnam. They informed their families and were truly happy.
·In March 2018 the review applicant returned to Vietnam, and they were officially and lawfully married. Their wedding and reception were in April 2018. After the wedding she stayed back to live with the visa applicant and his children. She returned to Australia in June 2018.
·The visa applicant listed the dates which she returned to Vietnam to visit the visa applicant. These correspond with Departmental records.
Provided to the Tribunal was a translated hospital discharge for the review applicant’s mother which indicated that she was in hospital from 11 April to 24 April 2018.
Hearing – review applicant’s evidence
At the hearing the review applicant stated that when she lived before in Vietnam, she would exercise by taking a walk in the morning and on one day the visa applicant was in the group. She met the visa applicant in mid-2014 to 2015, and they started to talk during the walk and then they would take a coffee break. Their relationship developed into being more than friends in 2016 before she came to Australia, in June to August 2016. They were talking and getting to understand each other’s situation and started to have feelings for each other. They were just talking and liking each other as friends.
In October 2016 the visa applicant told her he had feeling for her. In the same period, they started chatting further and she developed feelings, and she also told him she had feelings for him. They decided to marry when the visa applicant proposed to her 14 February 2018. The review applicant confirmed that the proposal came after a trip she made to Vietnam in 2017.
The review applicant returned to Vietnam to get married in March 2018, the wedding was attended by relatives from both sides. The review applicant’s younger aunt, her second sister and her spouse and her third sister. The visa applicant’s maternal aunt and uncle, and paternal aunt and two uncles. The visa applicant’s children attended. After the wedding she stayed at the visa applicant’s home. He was living with his two children.
Hearing –visa applicant’s evidence
At the hearing the visa applicant stated that in mid-2014 he met the review applicant when they were exercising in Da Nam Park. At the start they walked together as friends. After a bout a year, they started to talk more, they stated sharing about their lives together. They started to friends but after talking their feelings developed gradually. Around the end of 2015 they became close friends. Then the review applicant emigrated, and he felt sad and missed her and about two months after she left, he confessed his feelings for her. After he confessed his feelings, he realised they were love. After his confession she also told him she had feelings for him.
The visa applicant stated that he realised their feelings had matured and they could not be without each other, therefore on 14 February 2018 he proposed. However, before his proposal in 2017 the visa applicant had returned to Vietnam to visit him.
They were married March 2018 when the review applicant returned to Vietnam to get married. The wedding reception was attended by relatives form both sides and friends. There was the review applicant’s maternal relatives and from both his paternal and maternal sides. From his side his aunt and spouse and a cousin and from the maternal side an aunt and uncle. From the review applicant’s maternal side her youngest aunt and spouse, they were the wedding celebrant. There were also cousins from her maternal side.
After they were married, they stayed as his house.
Whether the parties are in a spouse or de facto relationship
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. With limited exceptions that only apply in relation to a decision to grant or not grant a Subclass 309 visa made on or after 20 August 2022, the visa applicant must continue to be the spouse or de facto partner at the time of the Tribunal’s decision: cl 309.221. In the present case the visa applicant claims to be the spouse of the review applicant who is Australian permanent resident.
‘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 reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.
At the hearing the Tribunal explained the above to the applicants and they confirmed that they understood the requirements.
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. Provided to the Department was an extract of marriage certificate issued by HCMC District 8 on 19 April 2018. 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
Evidence provided to the Department
At the interview the visa applicant stated that the review applicant had worked in a chicken factory until October 2018 and now works as a cashier in a food shop.
Evidence provided to the Tribunal
Provided to the Tribunal in relation to the financial aspects of the relationship were as follows:
·A letter in both Vietnamese and English from Sacombank dated 7 June 2022 indicating that the applicants have a joint account.
·Bank statement for the applicant’s joint account for the period 7 June 2022 to 5 May 2023.
·Photos of the applicant’s debit cards issued by the above bank.
·Money transfers receipts from the above account to the review applicant together with receipts of the monies being received into the review applicant’s ANZ account.
The review applicant in her statutory declaration stated that it is difficult to combine their finances as they are living in different countries. However, the visa applicant does support her financially by sending her money and other goods.
Hearing
At the hearing the Tribunal explained to the applicants that in relation to the financial aspects of their spousal relationship the circumstances the Tribunal must have regard to are set out in the definition of spouse and include: joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.
Hearing – review applicant’s evidence
At the hearing the review applicant stated that the visa applicant sends her money occasionally to buy something personal, but it is not a lot. She has a job with a wage. She works as a cashier at a night time shop in Canley Heights. She is paid $150 a day by cash. The visa applicant has not completed a tax return and she does not have any superannuation. Previously when she worked at the chicken shop she completed a tax return but she did not declare the review applicant as her spouse in her tax return. After further explanation the review applicant stated that when she worked in the chicken shop she was not married.

The review applicant stated that they both own their own assets, and the only joint asset is the bank account. The joint account is for when she returns to Vietnam, she has that account for shopping and expenses. The visa applicant uses the account by putting money in it for use when necessary and he has a separate visa card. The visa applicant can use the money if he needs but if he does not, he leaves the money there and he has a separate account. The money can be used by them but for personal business and other dealings he uses his visa card. The review applicant confirmed that the visa applicant does not have another bank account he only has a visa account. The visa applicant referred to the joint account and that the visa applicant opened an account.
The review applicant confirmed that the visa card is a debit card and it was from the joint account but then he opened an account for the visa card.
When she is in Vietnam if she has money, she puts into the joint account, and he transfers into the account. The visa applicant has Australian money that she brings to Vietnam and then he puts that money into the joint account. The applicants use that money for day to day expenses. She would withdraw money to pay for shopping and daily expense. If she has money she pays and if she does not the visa applicant will give her money but mostly it is her who pays.
If the visa applicant comes to Australia, she still has her job and they would first settle down and he would find a suitable job and study English. If he has money, he will obviously send it to Australia and that would help them while he is settling down.
Hearing – visa applicant’s evidence
At the moment he has his own clothing business. He does not support the review applicant financially, but he does send some money and gifts. The review applicant has told him that she has enough. The joint account is used every time the review applicant returns to Vietnam, she brings Australian money and they pool the money together. When the review applicant is in Vietnam, he gives the whole account to her so she can spend money on what is needed for the family. This includes groceries, supermarket shopping travelling expenses, all are paid from the joint account. The visa applicant confirmed that they do not have any joint assets or liabilities together nor do they have any legal obligations owed to the other party.
If he comes to Australia, he will sell his assets and property and bring the money to Australia and put it into the joint account with the review applicant. If the visa applicant comes to Australia, they could rent a unit that is big enough for all of them to stay in. The first thing they will use the money for is to rent a unit of all for them. After that hopefully they could buy the unit to become owners of a property.
Although the evidence of financial support when the applicants are in separate countries, the Tribunal accepts that when they are together in Vietnam they combined their financial resources in the joint account and that is used for their day to day expenses. Therefore, on the evidence the Tribunal is satisfied that the financial aspects of the relationship is consistent with a genuine relationship a the particular life stage of the parties and where they reside in different countries and are financially independent.
Nature of the Household
Evidence provided to the Department
As referred to above the review applicant visited Vietnam during the following periods: 29 June 2017 to 5 August 2017; and 22 March 2018 to 9 June 2018. The review applicant also visited Vietnam between 19 July 2018 to 5 October 2018.
The Department was also provided with hotel receipts in the applicants’ names for the following periods: in Binh Thanh, 16 to 18 July 2017; Vung Tau on 24 March 2018; and DA Lat, 5 to 8 May 2018. Also provided was a temporary residence for the review applicant at the visa applicant’s home on 26 July 2018.
At the interview the visa applicant stated that the review applicant since coming to Australia has lived with her daughter. When the delegate asked why the review applicant declared that her daughter lives at a different address, the review applciant stated that sometimes the review applicant’s daughter stayed with her father.
At the interview the delegate referred to information that the marriage may be contrived, and the visa applicant stated that they are truly in love and want to live together as husband and wife.
Evidence provided to the Tribunal
Departmental records indicate that the review applicant departed and entered Australia during the following periods: 22 March to 9 June 2018; 19 July 2018 to 2 October 2018; 29 January 2019 1 April 2019; 29 July 2019 to 8 August 2019; 12 November 2019 to 17 January 2020; 12 May 2022 to 11 August 2022 and 15 March 2023 to 5 April 2023.
In relation to the review applicant’s visits to Vietnam as indicated by the Departmental records the Tribunal was provided with:
·Travel documents including flight bookings and boarding passes;
·Temporary residence registrations for the review applicant as follows: from 10 April 2018; from 27 July 2018; from 20 February 2019 to 28 March 2019; 29 July 2019 to 5 August 2019; 28 August 2019 to 13 January 2020; 13 November 2019 to 13 January 2020.
·Numerous photos of the couple together and with family and friends during the review applicant’s visits to Vietnam.
Hearing
At the hearing the Tribunal explained to the applicants that in relation to the nature of the household aspect of their spousal relationship the circumstances the Tribunal must have regard to are set out in the definition of spouse and include: any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.
Hearing – review applicant’s evidence
When she returns to Vietnam, she stays with the visa applicant. There is a trip in early 2019 she was picked up at the airport and took her to his sibling’s home. Around the end of 2018 he rented a house and in the beginning of 2019, they moved to his younger brother in laws. The Tribunal asked if since then she has stayed at that . The applicant stated that the tenant left the visa applicant’s house in 2022 and they have stayed in that home, the visa applicant’s home since then.
The review applicant does the cooking, grocery shopping and shopping for other things needed for the house and cleaning. The visa applicant assists with the cooking, cleaning and dish washing. Whatever task she needed hep with he would assist, and he looks after the children. She assists with the visa applicant’s children by cooking, and she pays them attention and cares about them.
Hearing – visa applicant’s evidence
At the hearing the visa applicant stated every time the visa applicant returns to Vietnam she stays at his home. As referred to above the visa applicant stated that if he comes to Australia, they will rent a unit where they can all live.
The visa applicant stated that every time he had to go out to do business the review applicant stayed at home and cooked and took care of the household chores. He drops off and picks up the children. At the moment his son is old enough to drive so he takes the vehicle and drives himself. He has to do the pick up and drop off for his daughter. The visa applicant stated that after the review applicant has cooked, he does the washing up and when he has time at home, he does some cleaning.
The Tribunal recognises that it is difficult for a couple to spend time together and develop domestic routines when each is in a different country. However, the review applicant has made six trips back to Vietnam to spend time with the visa applicant and his children. The visa applicant’s daughter confirmed that she first met the review applicant during her trip to Vietnam in 2017. The information as to their sharing of household shores and care for the visa applicant’s children is consistent. The Tribunal is satisfied that when they are together in the same country they reside together as a couple and that this supports the existence of a genuine and ongoing marital relationship.
Social aspects
Evidence provided to the Department
Provided to the Department were the following statements:
·Ms Pham Minh Duc, dated 6 June 2018 in which she stated that she has known the applicants for short period of time through the gymnastics and sports association in Da Nam Park. The applicants came together to share their loneliness and hardship. They also had similarities in their past lives, thoughts and lifestyle and decided to live together to support each other. It was not intense love but enough each as they realised that they could not live without each other. She was supportive when they announced their wedding.
·Mr Nghia Nguyen, dated 6 June 2018 who is the younger brother of the visa applicant stated as follows:
oThe visa applicant was unlucky in love including his marriage. He was on his own for a long time and then he saw.
oHe then saw the visa applicant was loving live as he had new friends. He met the friends and noticed that the visa applicant was close to the review applicant. The visa applicant was shy about speaking with him about the review applicant and he could tell that the applicants loved each other but did not dare speak.
oThe visa applicant told him that the review applicant was to settle in Australia and he was sad. He told the visa applicant to tell her he loved her. He then announced they were dating, and he was happy for them.
oDespite being separated he could see their love deepen. He attended their wedding.
Mr Nghia Nguyen provided an updated statement dated 29 May 2023 to the Tribunal.
·Mr Phuong Tran, undated, the review applicant’s daughter who stated as follows:
oThe review applicant is a traditional woman of the family who cared for her while her father was involved in the finances. She worried about her mother after her parents divorced in 2005.
oShe met the visa applicant when he returned to Vietnam to visit the review applicant. She appreciated that he was with the review applicant when she was in trouble and making friends with her.
oShe sponsored her mother, the review applicant to come to Australia but saw that the review applicant was sad. This was because she remembered the visa applicant. After a while the review applicant told her that she and the visa applicant were in love.
oShe was happy and supportive when the wedding was announced.
oThe wedding was held in Vietnam, but Ms Pham could not attend as she was busy studying and working, she was excited to see her mother in white and she now has one more father.
Provided to the Department were post bills indicating the review applicant’s daughter had sent the visa applicant chocolate on 27 August 2018 and that he sent her clothes on 13 August 2018.
The Department was provided with tour bookings for the applicants and the visa applicant’s children for 28 to 29 July 2017; and to go to Ho Tram and Binh Chau for 26 to 27 May 2018. Also provided were photos of the applicants with the visa applicant’s children and family or friends at various social situations and at the airport.
Evidence provided to the Tribunal
Mr Nghia Nguyen provided an updated statement to the Tribunal which stated as follows:
·The visa applicant told him that he was dating the review applicant in the beginning of 2015. He was their groomsmen at the wedding ceremony.
·At the end of 2018 the applicants had rented a house in District 8 HCMC. In 2019 they moved to District 10.
·His family celebrates a reunion party at a restaurant. Together they visited relatives from both the paternal and maternal sides at Tet in 2019. On the death anniversary of relatives in 2019 and 2022 he also joined them.
·The applicants need to be together in their old age so they can lean on and take care of each other.
Hearing
At the hearing the Tribunal explained to the applicants that in relation to the social aspect of their spousal relationship the circumstances the Tribunal must have regard to are set out in the definition of spouse and include: whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.
Hearing – review applicant’s evidence
When they are in Vietnam they travelled together, shopping and eating out with the children. Occasional they would visit their relatives. They travelled together with the visa applicant’s children Da Lat, Vung Tau, Quy Nhon, Ho Tran and they also went with Thailand.
Their plans for social activities if the visa applicant and his children come to Australia, they will go out together for outings and having meals together. She would take them to the city of Sydney as a starting point for them to explore Australia.
Hearing – visa applicant’s evidence
The visa applicant stated that when they are in Vietnam together, he takes the review applicant on his motorbike when they go out. They do grocery shopping, shopping at malls and markets and visit relatives. They have meals together. They have travelled together with the children and they attend gatherings together such as a neighbour’s birthday or to maternal side death anniversary. They have also visited North region when the review applicant was last visited including Da Lat and Ha Tien.
If he comes to Australia, the visa applicant stated that first they would have to settle and take care of their lives before thinking of going out. The applicant stated that they want to visit relatives and visit the sites but they need to obtain a place first and study English. Then he wants to get a job.
Statements in support for a friend and a relative have been provided. Further, the evidence provided includes more photographs than provided to the Department showing the couple together with family members at numerous social and domestic situations, in particular when the sponsor returned to Vietnam. The Tribunal is therefore, satisfied that the evidence of social aspects of the relationship is consistent with the existence of a genuine and ongoing marital relationship.
Nature of persons’ commitment to each other
Evidence provided to the Department
The Department was provided with screenshots of calls and messages sent by Viber from August 2016 to June 2018.
The Tribunal was also provided with photos of post bills, supermarket receipts and parcel contents of parcels sent by the applicants to each other from December 2018 to January 2022.
Evidence provided to the Tribunal
The Tribunal was provided in relation the communication between the applicants the following:
·Untranslated screenshots of calls and messages made on an online platform. As they are untranslated the Tribunal is unable to ascertain who sent or received the messages and calls or the exact dates the calls and messages were sent and/or received. They appear to be made from 2019 to 2023.
·Still photos taken during video calls. The dates provided are May and June 2023.
The review applicant stated in her statutory declaration that they keep in touch everyday using Viber. They talk about their daily activities and express their feelings on the phone. She is planning to return to Vietnam in 2023. They are a genuine couple and have been in a spousal relationship for a long time. They hope their family can settle in Australia and focus on their family life.
The Tribunal was also provided with photos of post bills, supermarket receipts and parcel contents of parcels sent by the applicants to each other from December 2018 to January 2022.
Hearing
At the hearing the Tribunal explained to the applicants that in relation to the nature of their commitment of their spousal relationship the circumstances the Tribunal must have regard to are set out in the definition of spouse and include: including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.
Hearing – review applicant’s evidence
At the hearing the visa applicant stated that they share with each other their feelings and hardships in lives. Her plans for the future are that she will find a unit that is big enough for them. When they come to Australia, he will study English and find a suitable job. The unit will have to be close to her workplace and the schools for the two children. They would care for the children and raise them as responsible adults.
Hearing – visa applicant’s evidence
They have each other and care for each other since 2016 to now which is eight years. The want to be with each other and take care of each other. At the moment they are too far away for each other and deeply miss each other. They have been apart but they usually call and text using Viber application and during difficult times they encourage each other to have a happy mood or to be in good spirits.
Hearing
Any other circumstance of their relationship.
Hearing
At the hearing the Tribunal asked the applicants if there were any other circumstances of their relationship that they would like the Tribunal to consider when making its decision.
Hearing – review applicant’s evidence
At the hearing the review applicant stated that their relationship is genuine and the process has taken a long time.
Hearing – visa applicant’s evidence
The visa applicant stated that the review applicant stated that their relationship is genuine and they want to be reunited.
The Tribunal accepts that there has been consistent communication between the applicant and sponsor since they have met and that they draw significant emotional support from each other and they have continued to do so for a period of eight years, six years of which they have been married, and on all of the evidence referred to above, the Tribunal is satisfied that the parties see their relationship as long term.
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 Tribunal is satisfied that the applicants have a mutual commitment to a shared life to the exclusion of others and that their relationship is genuine and continuing and that they live together, not separately and apart, on a permanent basis. Accordingly, the Tribunal is satisfied that the applicant is in a spouse relationship with the sponsor and the visa applicant, therefore satisfies clauses 309.211(2)(a) and 309.221(1)(a) of Schedule 2 to the Regulations.
Secondary applicants
The visa applicant stated at the hearing that his daughter, the second named applicant is his eldest child and is 20 years old in April 2024. She lives with the visa applicant at his house. She is in her second year of university studying International Business.
At the hearing the review applicant stated that the third named applicant has just turned 18 years old and lives with the visa applicant at his home. He is studying year 12 in High School and will finish his exams in June 2024.
At the hearing the Tribunal asked the second named applicant when she first met the review applicant, which was in 2017 when she visited Vietnam.
The Tribunal accepts that the second and third named applicants are still studying and do not work and that they live with and are dependent on the visa applicant. Therefore, the Tribunal is satisfied that the second and third named applicants are dependent on the family head being the visa applicant. Accordingly, the second and third named applicant meet the requirements of cl.309.311.
Given the findings above, the appropriate course is to remit the application for the visas for the applicants to the Minister to consider the remaining criteria for a Subclass 309 visa.
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(2)(a) of Schedule 2 to the Regulations; and
·cl 309. 221(1)(a) of Schedule 2 to the Regulations.
And the secondary applicants meet the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl.309.311.
Namoi Dougall
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).

[2024] AATA 748

27 March 2024

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