Truong (Migration)

[2021] AATA 961

Truong (Migration) [2021] AATA 961 (17 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Canh Lan Truong

CASE NUMBER:  1722821

DIBP REFERENCE(S):  CLF2013/203946

MEMBER:David Crawshay

DATE:17 February 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl.801.221of Schedule 2 to the Regulations.

Statement made on 17 February 2021 at 1:06pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – genuine spousal relationship – financial aspects – joint contribution to purchase a café business – nature of household – social aspects – nature of commitment – long-distance relationship – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cl 801.221

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 5 September 2017 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 21 August 2013 on the basis of his relationship with his sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221(2) because he did not meet the definition of spouse under s.5F of the Act.

4. The applicant appeared before the Tribunal on 23 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and from a friend of the applicant, Ms Khanh Hien Pham. 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.

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

   BACKGROUND

7. The applicant claims to have met the sponsor at a restaurant where she worked in Adelaide in November 2012. The applicant claims to have gone there with friends for his birthday. He had just graduated from study at a university in Melbourne.

8. The applicant claims to have moved to Adelaide in February 2013. He claims that the parties began their boyfriend/girlfriend relationship one month later in March 2013. The applicant claims to have proposed to the sponsor in May 2013. The parties were married in July 2013.

9. The applicant made a combined application for the Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visas on 21 August 2013. On 8 February 2014, he was granted a Partner (Temporary) (Class UK) visa.

10. The present review has resulted from the delegate’s decision on 5 September 2017 to refuse the second-stage Partner (Residence) (Class BS) visa. The applicant is currently on a Bridging A visa (WA-010).

11. Most recently, in January 2020, the sponsor travelled to Berlin to live and undertake work with a “fintech” company. The applicant has remained in Melbourne where he runs a café in the east. The parties claim to communicate with each other while they are apart.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant is the spouse of the sponsor at the time of this decision.

    Whether the parties are in a spouse or de facto relationship

13. Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the “sponsoring partner” of the applicant.

14. “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 sponsor’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) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

15. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal has sighted a certificate for a marriage that took place on 9 July 2013. The Tribunal is satisfied that the certificate is genuine and that the parties were free to marry each other. 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 of the relationship

16. The Tribunal has considered the financial aspects of the parties’ relationship, including any joint ownership of real estate or other assets, any joint liabilities, the extent of pooling of financial resources, any legal obligations owed to the other party, and any sharing of day-to-day household expenses.

17. The Tribunal has considered evidence on the Department and Tribunal files as well as the parties’ testimony at hearing that they pool their resources through their personal and joint bank accounts. This evidence shows that the accounts are operated in a manner consistent with the parties being in a spousal relationship, including deposits, withdrawals and other transactions. It has also considered evidence showing that the parties have owed each other legal obligations through them being in a company (the applicant as a director and shareholder; the sponsor as the company secretary). Although this has likely changed given that the sponsor is currently not residing in Australia and so may not be able to continue on in her role as secretary, it accepts that those legal obligations existed up until recently. The Tribunal also accepts that the parties made a joint contribution of $30,000 to purchase a café business in September 2019.

    Nature of the household

18. The Tribunal has considered the nature of the parties’ household, including any joint responsibility for the care and support of children, the parties’ living arrangements and any sharing of housework.

19. The Tribunal has considered evidence of the parties’ living arrangements during the time that they claim to have been in a relationship, including most recently where they claim to have shared residences in Bayswater and Maribyrnong. Based on documentary evidence such as a lease agreement over the Maribyrnong address, correspondence addressed to the parties and declarations made to government agencies and others, it accepts that they lived under the same roof in addresses in Bayswater and Maribyrnong until the sponsor left to go to Germany for work.

    Social aspects of the relationship

20. The Tribunal has considered the social aspects of the parties’ relationship, including whether the parties represent themselves to other people as being in a married relationship with each other, the opinion of friends and acquaintances about the nature of the relationship, and any basis on which the parties plan and undertake joint social activities.

21. The parties have submitted a number of photographs of themselves with each other and in the presence of the sponsor’s family and their friends. This evidence shows that the parties have taken the opportunity to represent themselves to these people as being in a relationship with each other. The Tribunal gives especial weight to evidence showing that the applicant has been warmly and enthusiastically accepted into the sponsor’s family since the time he claims to have met the sponsor. It considers that this acceptance is important for the parties. The parties have also submitted evidence of trips taken together as well as events attended together. The Tribunal accords this evidence weight in its consideration of the social aspects of the relationship.

    Nature of the parties’ commitment to each other

22. The Tribunal has considered the nature of the parties’ commitment to each other, including the duration of the parties’ relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other and whether they see the relationship as long-term.

23. The Tribunal has considered that the parties claim to have been in a relationship for over six years at the time of this decision. During that time, they claim to have lived together at certain times and to have lived away from each other at other times due to their jobs and study.

24. Turning to the degree of companionship and emotional support the parties draw from each other, the Tribunal has had regard to answers given by the parties during the hearing as well as evidence on the Department and Tribunal files. It accepts that they have endeavoured to see each other regularly during the times they have been living separately from each other. This includes evidence of recent attempted travel such as a flight itinerary for the sponsor to come out to Melbourne in December 2020 (a trip that probably did not occur given the travel restrictions). The Tribunal accepts that at times where they were living separately they offered each other support over the telephone, email and social media. The Tribunal has had particular regard to evidence from the sponsor that the applicant helped her emotionally during a very difficult time in her life following the break-up of her parents.

25. The Tribunal is aware of allegations that the applicant was in a relationship with another person, Ms Trang Hoang, at the same time as he claimed to be in a relationship with the sponsor. This allegation mainly centred on the fact of the applicant living with Ms Hoang in Adelaide while the sponsor lived elsewhere for most of the time. Certainly, the Tribunal finds the parties’ initial living arrangements peculiar. However, based on further evidence such as movement records showing that Ms Hoang left Australia a few years ago, the Tribunal is satisfied that the applicant is not currently in a relationship with Ms Hoang if ever he was. It has therefore chosen to give little weight to these allegations in its consideration of the nature of the parties’ commitment to each other.

26. Based on this evidence in front of it, the Tribunal accepts that the parties offer each other companionship and emotional support and that they regard themselves as being in a committed relationship. Based on the parties’ testimony at hearing, the Tribunal is satisfied that they intend to reunite with each other following completion of the sponsor’s term of employment in Germany and accepts that they see their relationship as a long-term one.

    CONCLUSION

27. In coming to its decision, the Tribunal accepts that the parties’ relationship is not typical – not least because it has been a long-distance one for much of its duration. However, it acknowledges the cogent evidence given by both parties and especially notes the straightforward and disarmingly frank testimony of the sponsor. It is clear that both parties are impressive individuals who show a great deal of initiative in following their chosen paths. While this has meant they are currently living in different countries, it should not act as a disqualifying factor if the requirements of a spousal relationship are met. In the eyes of the Tribunal, having considered and weighed the evidence submitted by the parties and by third parties, their relationship is genuine and continuing and marked by a commitment to a shared life as a married couple to the exclusion of all others. Moreover, the parties, although living away from each other, do not live separately and apart on a permanent basis.

28. Given these findings the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of this decision.

29. Therefore, the applicant meets cl.801.221(2)(c).

30. The Tribunal is satisfied that the applicant is the holder of a Subclass 820 visa, that he continues to be sponsored for the grant of the Subclass 820 visa by the sponsor, who is an Australian citizen, and that two years have passed since the application was made.

31. Therefore, the applicant meets cl.801.221(2).

32. 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 801 visa.

    DECISION

33. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

    ·cl.801.221(2) of Schedule 2 to the Regulations.

    David Crawshay
    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).