Tran (Migration)

[2019] AATA 3691

Tran (Migration) [2019] AATA 3691 (2 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Thi Chau Ngoc Linh Tran

VISA APPLICANT:  Mr Huu Nhan Nguyen

CASE NUMBER:  1717156

DIBP REFERENCE(S):  OSF2016/038442

MEMBER:Grant Chapman

DATE:2 July 2019

PLACE OF DECISION:  Adelaide

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

·cl.309.221 of Schedule 2 to the Regulations

Statement made on 02 July 2019 at 10:52am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – genuine and continuing spousal relationship – evidence of communications, travel and cohabitation provided – pooling of financial resources – parties represent themselves to others as being married to each other – strong degree of companionship and emotional support – relationship viewed as long-term – mutual commitment to shared life to exclusion of all others – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65
Migration Regulations 1994 (Cth), r 1.15A(3), 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 13 June 2017 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, Huu Nhan Nguyen, applied for the visa on 26 June 2016 on the basis of his relationship with his sponsor, Thi Ngoc Linh Tran, 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) and 309.221 in Schedule 2 of the Migration Regulations because the delegate believed that there was insufficient evidence and information to demonstrate that they are in a genuine and continuing spousal relationship as defined under section 5F of the Migration Act.

4. The review applicant appeared before the Tribunal on 17 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Huu Nhan Nguyen, who is the visa applicant and is sponsored by the review applicant.

5. Prior to and after the Tribunal Hearing, the review applicant provided additional documents, most notably, sets of Viber communications between her and the applicant covering an extended period of time which, subsequently, at the request of the Tribunal, were provided again with certified English translations. Also, additional documents were provided relating to travel which the review applicant shared with the applicant in Vietnam.

6. The Tribunal had some concerns regarding the information provided and arranged a second Hearing attended by the review applicant on 24 June 2019. Evidence given at that Hearing allayed as concerns.

7. The review applicant was represented in relation to the review by her registered migration agent, Rosemary Follett, from MSM Legal of Adelaide. The representative attended both Tribunal Hearings.

8. The first Tribunal Hearing was conducted in the English and Vietnamese languages, with the assistance of an interpreter, while the second Hearing was conducted in English.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant and review applicant are in a spousal relationship, as defined by section 5F of the Migration Act.

11. The applicant and review applicant rely on written submissions and supporting evidence provided to the Tribunal and previously to the Department, together with oral evidence which the applicant and review applicant gave at the Tribunal Hearings.

    Whether the parties are in a spouse or de facto relationship

12. 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.

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). 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?

14. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The review applicant and applicant provided to the Tribunal a certified translation of a Marriage Certificate issued by the People’s Committee of Duyen Hai Town, Tra Vinh Province, Socialist Republic of Vietnam, confirming the marriage of the applicant and sponsor, on 16 May 2016, which is consistent with the date of marriage given in the applicant’s Department of Immigration and Border Protection Form 47 SP migration application document. 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?

15. In examining the documentary evidence tendered and the oral evidence given by the applicant review applicant at the Tribunal Hearing, the Tribunal has considered all aspects of the relationship as described in paragraph 13 above.

16. The applicant lodged a valid application for a Partner (Provisional) (Class UF) (Subclass 309) and Partner (Migrant) (Class BC) (Subclass 100) visa on 29 June 2016.

    Financial aspects of the relationship

17. Joint ownership of assets: The applicants did not provide any evidence to the Tribunal regarding joint ownership of assets nor did they claim to have any joint assets. The Tribunal finds that they have no joint ownership of assets. However, given that they are living in separate countries, the Tribunal gives minimal weight in its Decision to this lack of joint assets.

18. Joint liabilities: The applicants did not provide any evidence to the Tribunal regarding joint liabilities nor did they claim to have any joint liabilities. The Tribunal finds that they have no joint liabilities. However, given that they are living in separate countries the Tribunal gives minimal weight in its Decision to this lack of joint liabilities.

19. Extent of pooling of financial resources: The applicant and review applicant provided a bank statement for a Shinhan Bank bank account in their joint names in Vietnam from 1 September 2017 to 3 August 2018, showing a cash deposit of 50 million dong by the applicant on 6 October 2017 and various withdrawals during October 2017 when the review applicant claims to have visited Vietnam and cohabited with the applicant. This claim is consistent with the review applicant’s official Movement Record. This joint account shows several further more modest deposits by the applicant, interest earned and some modest withdrawals in 2018. The review applicant provided also, documented evidence of several money transfers to the applicant during 2017 and 2018, amounting to A$3950. Although a relatively modest sum in absolute terms, the Tribunal accepts that this sum is significant in terms of the review applicant’s income. The Tribunal finds that there has been a modest pooling of financial resources between the applicant and review applicant. However, given that they are living in separate countries and their modest respective financial means, it gives this circumstance substantial weight in its Decision.

20. Any legal obligations owed to the other party: Beyond the usual legal obligations of a married couple to each other, the applicant and review applicant did not provide any evidence of other legal obligations owed between them. The Tribunal finds that, apart from their marriage, the parties do not have any legal obligations to each other. However, given that they are living in separate countries the Tribunal gives minimal weight in its Decision to this lack of legal obligations.

21. Any sharing of day-to-day household expenses: Including the occasion of their wedding, the applicant and review applicant provided documentary evidence to the Tribunal, in the form of joint hotel accommodation and related travel expense receipts, of having cohabited and travelled together in Vietnam on six separate visits by the review applicant. These documents are consistent with the review applicant’s absence from Australia, as identified in her official Movement Record. Given that they are living in separate countries, the Tribunal finds that, to the extent that it is feasible, the applicant and review applicant have shared day-to-day household expenses and gives this circumstance substantial weight in its Decision.

22. Financial aspects conclusion: Overall, the Tribunal gives moderate weight to the cumulative evidence presented regarding the financial aspects of the relationship between the applicant and review applicant as demonstrating that the relationship is a mutual commitment to a shared life together to the exclusion of all others, being a genuine and continuing relationship and that they are living together, or not separately and apart on a permanent basis.

    The nature of the household

23. Any joint responsibility for the care and support of children: Although they have been married for some three years, the applicants do not have any children. Nor do they have any children from any previous relationships. The Tribunal finds that the applicant and review applicant do not have any responsibility for the care and support of children. However, the Tribunal acknowledges the difficulty and impracticality of starting a family when the applicant and review applicant are living in separate countries and so, gives this circumstance no weight in its Decision.

24. The living arrangements of the applicants: The Tribunal notes that there are some discrepancies in the original evidence of the applicant and review applicant as to when they first met, whether that was during the review applicant’s visit in November – December 2012, or her visit February 2013. On the balance of probabilities, the Tribunal accepts that it is most likely that they first met, briefly, during the November – December 2012 visit of the review applicant and they did not first meet or share any time together during February 2013. However, the applicant and sponsor have provided documented evidence in the form of shared hotel receipts and airline boarding passes, of cohabiting for extended periods, ranging from five weeks to two months, during six subsequent visits of the review applicant to Vietnam between 2016 and early 2019, including celebrating their wedding during the second of those subsequent visits. The Tribunal finds that to the extent feasible, given that they are living in separate countries, the applicant and review applicant have lived together for significant periods of time, albeit in hotels rather than traditional residential accommodation. It gives this circumstance substantial weight in its Decision.

25. Any sharing of responsibility for housework: The applicant and review applicant have not made any claims or provided any evidence regarding a shared responsibility for housework. However, given the intermittent nature of their time shared together, consequent on them living in separate countries and that they stay in hotels during their shared time, the Tribunal gives the absence of any shared responsibility for housework no weight in its Decision.

26. Household aspects conclusion: Overall, the Tribunal gives moderate weight to the cumulative evidence presented regarding the nature of the household as being one which demonstrates the relationship between the applicant review applicant as being a mutual commitment to a shared life together to the exclusion of all others, being a genuine and continuing relationship and that they are living together, or not separately and apart on a permanent basis.

    The social aspects of the relationship

27. Whether the persons represent themselves to other people as being married to each other: The applicant and review applicant provided documented evidence in the form of signed declarations from a significant number of family and friends attesting to the fact of their wedding ceremony and that they continue to present to others, both when together and when apart, as a married couple. They provided numerous photographs, taken over the several years of the claimed relationship, showing them in various social settings as a couple, with both family and friends. They provided also, photographs of their wedding, including with family and friends. The Tribunal finds that they represent themselves to others as being married to each other and gives this circumstance substantial weight in its Decision.

28. The opinion of friends and acquaintances about the nature of the relationship: The statements described in paragraph 25 above demonstrate that a significant number of friends, together with their respective families, attest that the relationship of the applicant and review applicant is a genuine and continuing spousal relationship.

29. Any basis on which the persons plan and undertake joint social activities: As described in paragraphs 17 and 19 above, the applicant and review applicant, on a number of occasions since early 2016, have planned and undertaken shared trips to various parts of Vietnam. Numerous photographs demonstrate social activities shared with friends and family during those trips. The Tribunal finds that, to the extent feasible, given that they live in separate countries, the applicants plan and undertake joint social activities and gives this circumstance substantial weight in its Decision.

30. Social aspects conclusion: Overall, the Tribunal gives substantial weight to the cumulative evidence presented regarding the nature of the social aspects of the relationship between the applicant and review applicant as being one which exhibits a mutual commitment to a shared life together to the exclusion of all others, being a genuine and continuing relationship and that they living together, or not separately and apart on a permanent basis.

    The nature of the persons’ commitment to each other

31. The duration of the relationship: The applicant and review applicant told the Tribunal that the applicant asked the review applicant to be his girlfriend on the day of her eighteenth birthday, 24 September 2013, during a telephone conversation. However, there is no reference to this matter in any of the Viber communications between the applicant and review applicant around this time. The Tribunal accepts that the applicant and review applicant first met late in 2012. It has documented evidence of regular communication between the review applicant and applicant from 5 January 2013 until the present, in the form of certified translations into English of copies of Viber communications. However, the Tribunal notes that the initial period of those communications appear to be more accurately described as being between “pen friends,” rather than a committed relationship. The Tribunal accepts that, subsequently, those communications became romantic in nature. However, on the balance of probabilities, it finds that a relationship, in the nature of that required to meet the spousal requirement of s.5F, commenced only at the time of their wedding. Therefore, the Tribunal finds that, at the time of visa application, the duration of the relationship had been for a period of six weeks and at the time of this Decision, it has been for a period slightly in excess of three years. It gives this circumstance moderate weight in its decision.

32. The length of time which the persons have lived together: On the evidence before it, the Tribunal finds that the applicant and review applicant have lived together during six periods totalling approximately 41 weeks during the past nearly three and a half years. It gives this circumstance moderate weight in its Decision.

33. The degree of companionship and emotional support the persons draw from each other: On reading a substantial number of the numerous Viber messages exchanged between the applicant and review applicant during some six years, which messages the review applicant claims to number 3543 in total and which number the Tribunal accepts, the Tribunal finds that, as the relationship has developed over those years, a strong degree of companionship and emotional support has emerged between them, despite substantial periods of separation. The extent of this mutual support is evident from the number of trips which the review applicant has taken to Vietnam to share time with the applicant, at considerable expense, despite her relatively modest income. The Tribunal finds that there is a significant degree of companionship and emotional support which the persons draw from each other and gives this circumstance substantial weight in its Decision.

34. Whether the persons see the relationship as a long-term one: When questioned at the Tribunal Hearing about any plans for the future, the applicant and review applicant demonstrated that this had been discussed between them. The applicant currently works with his family in the aquaculture business in Vietnam and has discussed with the review applicant engaging in this business in Australia in the future, after gaining some relevant experience. The review applicant has discussed with him her wish to open a manicure shop of her own, rather than continuing to be an employee in that field. They told the Tribunal that they plan to establish their own household in Australia and start a family, having one or two children. The Tribunal finds that the applicant and review applicant see the relationship as a long-term one and gives this circumstance significant weight in its Decision.

35. Commitment conclusion: Overall, the Tribunal places substantial weight on the cumulative evidence presented regarding the nature of the persons’ commitment to each other as being one where the relationship between the applicant and sponsor exhibits a mutual commitment to a shared life to the exclusion of all others, being a genuine and continuing relationship and that it is their intent to live together for the long-term, or not separately and apart on a permanent basis.

    Any other relevant considerations

36. The Tribunal has determined that there are no other relevant considerations.

    Overall conclusions

37. For the above reasons, having carefully considered each of the prescribed factors under s.5 F(2)(a–d), the Tribunal is satisfied that, at the time of visa application and at the time of this decision, the visa applicant and review applicant were in a genuine and continuing relationship and had a mutual commitment to a shared life together to the exclusion of all others and live together, or not separately and apart on a permanent basis.

1. Given these findings, 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.

2. Therefore the visa applicant meets cl.309.211(2)(a) and cl.309.221.

3. 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

4. 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

   ·cl.309.221 of Schedule 2 to the Regulations

   Grant Chapman
   Senior 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).