TRINH (Migration)

[2020] AATA 5591

TRINH (Migration) [2020] AATA 5591 (13 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ba Nhat TRINH

CASE NUMBER:  1732999

HOME AFFAIRS REFERENCE(S):          BCC2015/1559716

MEMBER:John Longo

DATE:13 November 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

●cl.820.211(2) of Schedule 2 to the Regulations; and

●cl.820.221(1)(a) of Schedule 2 to the Regulations.

Statement made on 13 November 2020 at 2:29pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – joint bank account and car registrations – joint tenancy agreements – shared household responsibilities – trips to Vietnam – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.15

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 and Border Protection to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 29 May 2015 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 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.820.211(2) of Schedule 2 to the Regulations because the applicant did not meet the definition of spouse under s.5F of the Act. Specifically, the delegate noted a lack of evidence of the pooling of resources and of shared living arrangements. The delegate also found that there was unconvincing evidence that they presented as a married couple to family or the wider community and that they undertook regular joint social activities.

4. The applicant appeared before the Tribunal on 3 March 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal 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 primary criteria to be satisfied at the time of application are that the applicant is not the holder of a Subclass 771 (Transit) visa and that he meets one of the alternate requirements set out in cl.820.211(2), (5), (6), (7), (8) or (9): cl.820.211(1).

8. The Tribunal has reviewed the applicant’s movement records, which also detail his visa status at various times. The Tribunal is satisfied that the applicant was not the holder of a Subclass 771 (Transit) visa at the time of application. Therefore, the Tribunal finds that cl.820.211(1)(a) is met.

9. The subclause relevant to the applicant’s circumstances is cl.820.211(2). The key issue for determination is whether, at the time of application on 29 May 2015, the applicant was the spouse of the sponsor. The Tribunal also considered, at the time of this decision, whether the applicant continues to be the spouse of the sponsor and meets the criteria in cl.820.221(2) or (3).

   Whether the parties are in a spouse or de facto relationship

10. Clauses 820.211(2)(a) and 820.221 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. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.

11. ‘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 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?

12. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant and the sponsor were married in Springvale South, Victoria, on 11 February 2015. A copy of the parties’ Certificate of Marriage is on the Department’s file. 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?

13. In assessing the issues in r.1.15A(3) of the Regulations, the Tribunal has had regard to all documents on the Department’s and the Tribunal’s files, as well as oral evidence given at the hearing.

    The financial aspects of the relationship

14. Any joint ownership of real estate or other major assets, any joint liabilities, the extent of any pooling of financial resources, whether one 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 are relevant factors to consider when assessing the financial aspects of the relationship.

15. At the hearing, both the applicant and the sponsor gave consistent oral evidence about the financial aspects of their relationship. The applicant stated that he was studying a Diploma of Marketing, which he finished in 2017 and then commenced a Bachelor of Accounting. While he was studying in 2017, he started his own fence building business. The applicant stated that the sponsor was working at Strike bowling while undertaking a Bachelor of Nursing. The applicant stated that they had a joint bank account but the sponsor also had her own personal account, but she stopped using the account in 2017 and now they use the joint account. The applicant stated that they have two vehicles which are registered in each of their names.

16. He stated that they initially were living with his sister and her family, paying $300 per month for board and $500 per month for food and bills. This was paid in cash to his sister. In 2017, his sister and her family moved to Frankston and they rented the property from his sister through a real estate agent, paying $1,000 per month. They moved to Noble Park in 2018 where they jointly rent a property. They share the property with a couple and their son and also another friend who pay them cash for board and bills. The Tribunal notes that rental payments are paid from the joint account. The sponsor confirmed the living arrangements, both when residing in her sister’s home and when they moved to Noble Park, and the payment of rent and bills from the joint account.

17. There is no evidence before the Tribunal that the applicant and the sponsor jointly own real estate. The Tribunal notes that various utility accounts were provided to the Tribunal which show that the accounts are in both names but also an account in the applicant’s name. The applicant also provided copies of the tenancy agreements for the last two properties rented which show the tenancy in both his and the sponsor’s name.

18. The Tribunal accepts the parties’ oral evidence about the financial aspects of their relationship, including the joint rental of the residential property. Based on the evidence before it, the Tribunal finds that both at the time of the application and at the time of the decision there is evidence of the pooling of financial resources and the sharing of day-to-day household expenses. The Tribunal also notes that the applicant and sponsor have joint accounts and liabilities.

19. The Tribunal notes that the applicant submitted minimal documentary evidence in support of these claims at the time of the application. The Tribunal found both parties’ oral evidence to be frank, honest and credible and accepts their oral evidence. Accordingly, the Tribunal finds that, at both the time of application and at the time of this decision, the applicant and the sponsor pooled and continue to pool their financial resources to some extent and they shared and continue to share their day-to-day household expenses. The Tribunal gives positive weight to the evidence of the financial aspects of the relationship.

    The nature of the household

20. Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are relevant matters to be considered when assessing the nature of the household. There is no evidence before the Tribunal that the parties have children together.

21. In relation to the living arrangements, the Tribunal notes that the applicant and sponsor reside together, both at the time of the application and currently. The oral evidence of both the applicant and the sponsor indicated that initially, at the time of the application, they were living with the applicant’s sister and her family. Subsequently in 2017, the applicant’s sister moved to Frankston and the applicant and sponsor rented the property from the applicant’s sister.

22. Both the applicant and sponsor confirmed that they are currently living together at another property in Noble Park, which they share with others. Both the applicant and sponsor confirmed that the applicant and sponsor cooked together and the sponsor did the laundry for both of them. The applicant, and the sponsor, stated that they share the house cleaning with the other people who reside at the house. Previously, when they were residing with the applicant’s sister, the sponsor helped with the cooking and did cleaning and laundry for them.

23. Accordingly, the Tribunal finds that, at both the time of application and at the time of this decision, the applicant and the sponsor have shared household responsibilities and living arrangements. The Tribunal also accepts the parties’ consistent evidence about the division of household chores and tasks, including the cooking. The Tribunal gives great positive weight to the evidence of the nature of the household.

    The social aspects of the relationship

24. Whether the parties represent themselves 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 are relevant matters to be considered in determining the social aspects of the relationship.

25. There is evidence before the Tribunal that, both at the time of the application and at the time of the Tribunal’s decision, the applicant and the sponsor were continuing to represent themselves to other people as being married to each other. For example, the Tribunal notes the photographs that were submitted from the applicant and sponsor’s trips to Vietnam and in Sydney, and celebrating their wedding ceremony and travelling together. The Tribunal further notes other photographs of the applicant and sponsor socialising with family both here and overseas. The Tribunal has also reviewed and considered the Form 888 statutory declaration of the applicant’s and sponsor’s families in support of the application. These statements included statements from the sponsor’s siblings and the applicant’s family in Vietnam. All of the statements gave positive opinions in support of the relationship. The Tribunal notes that some of these statements were not before the delegate.

26. The applicant and the sponsor gave consistent oral evidence about the social aspects of their relationship. The Tribunal also notes the documentary and photographic evidence that has been submitted to the Tribunal in respect of the trips taken with their respective families here in Australia. The Tribunal also notes that the applicant and sponsor have travelled together to Vietnam on several occasions to visit family. While there have been times that the applicant and sponsor have travelled separately to Vietnam, the Tribunal has accepted the evidence as to the reasons why this occurred. In light of the evidence before the Tribunal, the Tribunal finds that there is social and public recognition of the relationship.

    The nature of the persons’ commitment to each other

27. 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 persons draw from each other, and whether the persons see their relationship as long-term are all aspects to be considered in determining the nature of the persons’ commitment to each other.

28. The Tribunal notes that the applicant and the sponsor made statements which are on the Tribunal’s file. At the hearing, the parties provided a consistent account of the inception and development of their relationship. The evidence before the Tribunal is that the parties have been in an exclusive and committed relationship for over five years, having first met in 2014 in Noble Park. The Tribunal gives weight to the evidence of the duration of the relationship as well as the length of time the persons have lived together which, based on their oral and written evidence, has been in Noble Park since January 2015.

29. The applicant told the Tribunal that they have a strong and committed relationship and support each other and that they wish to grow old together. The sponsor stated that the relationship is very caring and considerate. They have plans for their future together, including travel to Japan, having children and buying a home together. They both spoke of the mutual support provided to each other in relation to their work. The Tribunal gave particular note to the evidence of the applicant and sponsor’s family who stated that they are both considerate of each other and loving and that the applicant has fitted into each of their respective families very well.

30. Both at the time of the application and at the time of this decision, the parties have been in a committed relationship. They have been together for five years and have been married since 2015. The Tribunal gives weight to the length of the relationship.

31. They both told the Tribunal that they saw their relationship as being for the long term and they were able to give their reasons for holding this view, including their mutual financial plans of saving towards purchasing their own home and starting a family. They gave consistent oral evidence and were able to provide detail about the nature of their individual interests. The Tribunal accepts that these factors are indicative of their genuine commitment to the relationship. In light of all the evidence before the Tribunal, the Tribunal finds that the parties see their relationship as long term.

32. The Tribunal found both parties to be open in answering the Tribunal’s questions. The Tribunal found their evidence to be frank, honest and very credible. They spoke about their relationship with simplicity and honesty. They gave consistent oral evidence, but their answers did not appear rehearsed, rather they were spontaneous and natural. The Tribunal places great weight on the evidence of the nature of each person’s commitment to the other.

    Consideration of section 376 certificate

33. The Tribunal notes that the Department issued a certificate under s.376 of the Act stating that the disclosure of enumerated folios from the Department would be contrary to the public interest because:

    ·     they contained sensitive internal Departmental procedures regarding a home site visit; and

    ·     because they contained information relating to the sponsor’s mother.

34. The Tribunal has determined that the certificate is not valid for the following reasons. Firstly, the information relating to the sponsor’s mother is not relevant to the issues to be considered in this application, as the information does not relate to the applicant or the sponsor. Secondly, the documents covered by the certificate issued under s.376 which relate to Departmental procedures regarding a home site visit is not valid because disclosure would not prejudice any ongoing investigation or reveal personal information of persons other than the applicant and the sponsor.

35. The information obtained from the site visit was provided to the applicant for comment and referred to in the delegate’s decision. These issues were discussed at the hearing before the Tribunal.  The Tribunal has considered the information regarding the site visit conducted in 2017 in the context of the responses provided to the Department at the time and the subsequent documentary and oral evidence provided to the Tribunal. The Tribunal has accepted the applicant and sponsor’s evidence regarding the site visit and, in weighing this information, has not given the site visit considerable weight.

36. The Tribunal is satisfied, considering all of the evidence above cumulatively, that the parties have demonstrated and continue to demonstrate a level of commitment to one another and to their spousal relationship as contemplated in the Regulations.

    CONCLUSION

37. As stated above, the Tribunal is satisfied that the parties are validly married, as required by s.5F(2)(a) of the Act. After considering all the evidence before it and for the reasons given with respect to the r.1.15A(3) matters, the Tribunal is satisfied that, at the time of the application, the applicant and the sponsor:

    ·had a mutual commitment to a shared life as husband and wife to the exclusion of all others, as required by s.5F(2)(b) of the Act;

    ·had a genuine and continuing relationship, as required by s.5F(2)(c) of the Act; and

    ·live together and not separately and apart on a permanent basis, as required by s.5F(2)(d)(ii) of the Act.

38. Given these findings, the Tribunal is satisfied that the requirements of s.5F(2) were met at the time of the application.

    Time of application and time of decision requirements

39. The sponsorship requirements in cl.820.211(2)(a)(ii) and cl.820.211(2)(c) must also be satisfied, and, if the applicant was not the holder of a substantive visa at the time of application, then the requirements in cl.820.211(2)(d) must also be satisfied.

40. Ms Le attended the hearing in the role as the applicant’s partner and sponsor. She gave oral evidence before the Tribunal that they financially support each other and will continue to do so. Accordingly, the Tribunal is satisfied that the applicant is sponsored by Ms Le and that cl.820.211(2)(c)(i) is met. The Tribunal also finds that Ms Le is not prohibited by cl.820.211(2B) from being a sponsoring partner and the Tribunal also finds that cl.820.211(2)(a)(ii) is met.

41. The applicant’s movement records evidence him as having been granted a Student (Subclass 573) visa since arriving on 21 March 2014. He held this substantive visa upon applying for the Partner (Temporary) (Class UK) Subclass 820 visa on 29 May 2015. As the applicant held a substantive visa at the time of application, the further requirements in cl.820.211(2)(d) need not be met. The Tribunal finds that the applicant meets the time of application requirements in cl.820.211(1) as he meets the requirements in cl.820.211(1)(a) and (b), the latter on the basis of meeting all the requirements in cl.820.211(2).

1. However, the requirements in cl.820.221(2) must also be satisfied, if the Tribunal is to determine that the applicant continues to meet the requirements at the time of the decision.

2. The Tribunal finds that, at the time of this decision, and based on the findings of fact discussed in these reasons above, the applicant continues to meet the time of application requirements in cl.820.211(2) and also meets cl.820.221(1)(a) at the time of decision. As discussed above, the applicant held a Student (Subclass 573) visa upon applying for the Partner (Temporary) (Class UK) Subclass 820 visa. As the applicant held a substantive visa at the time of application, the further requirements in cl.820.211(2)(d) need not be met.

   DECISION

3. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

   ·cl.820.211(2) of Schedule 2 to the Regulations; and

   ·cl.820.221(1)(a) of Schedule 2 to the Regulations.

   John Longo
   Member

   ATTACHMENT - Extract from Migration Regulations 1994

   1.15A     Spouse

   (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).