Truong (Migration)

[2019] AATA 6096

Truong (Migration) [2019] AATA 6096 (7 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Van Phuong Truong

CASE NUMBER:  1806189

DIBP REFERENCE(S):  CLF2011/99215

MEMBER:Mary Urquhart

DATE:7 October 2019

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.801.221 of Schedule 2 to the Regulations

Statement made on 07 October 2019 at 2:44pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – Federal Circuit Court remittal – genuine and continuing relationship – validly married – financial, household and social aspects of relationship – nature of commitment – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5F(2), 65

Migration Regulations 1994 (Cth), Schedule 2, cl 801.221(2)(c)

CASE
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 27 October 2014 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 24 June 2011 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. The delegate was not satisfied that the visa applicant and the sponsor are genuine and continuing spousal partners.

4. This matter was before the Tribunal previously (differently constituted) but subsequent to an appeal, on 2 March 2018 the Federal Circuit Court set aside Tribunal decision number 1418339 and made orders remitting the matter to the Tribunal for further consideration.

5. The applicant appeared before the Tribunal on 13 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor’s son Mr Tam Le, the sponsor’s nephew, Mr Xuyen Dac Ho and from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The applicant was represented in relation to the review by his registered migration agent.

7. Prior to the hearing the Tribunal was provided with further documentation and submissions see Tribunal folios 28-58. The material includes up to date financial statements, a Statutory Declarations by the parties and by Hai Thanh Pham all dated 3 September 2019 and a statement by Nguyen Dac Ho dated 28 August 2019 together with some Optis accounts.

   Post Hearing

8. The Tribunal received a document dated 19/9/2019 confirming the sponsor’s relationship with Mr Le Thanh Tung (her previous de facto partner) was not a registered marriage in Vietnam.

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 at the time of decision the visa applicant is the spouse of the sponsoring spouse within the meaning of r.1.15A of the Regulations.

    Background

11. The applicant Mr Von Phuong Truong born 3 July 1947 is a national of Vietnam. He was previously married to Ms Thi Phung Tran in 1975. Ms Tran passed away in May 1990. He declares 6 children of the relationship. One adult child lives in Australia. The sponsor, Ms Tran, an Australian permanent resident, was born 15 June 1957.  She declares one previous de facto relationship with Mr Le Thanh Tung; it commenced in 1979 and ended in 1980. She has one child from the relationship.

12. The parties claim to have first met when neighbours in Binh Ba, Vietnam in 1984. They claim to have been in a relationship since 2008 and to have lived together since 2009 and have married.

    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.

14. In the present case the applicant claims to be the spouse of the sponsor who is an Australian permanent resident 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.

15. ‘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) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

16. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. Based on the registered marriage certificate, the Tribunal is satisfied that the parties were married at Footscray on 2 April 2011. On the evidence, the parties were free to marry and 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

17. The Tribunal has been provided with some further documentation regarding financial aspects of the relationship in the form of 4 Commonwealth bank statements; each statement is in both names and addressed to the Harold Rd address. They bear 2 dates in 2018 and 2 dates in 2019. The parties displayed satisfactory knowledge of each other’s financial affairs.

    Nature of the Household

18. The parties claim to have commenced living together shortly after the applicant’s arrival in Australia. They are fortunate to have been assisted with accommodation by the sponsor’s son. They presently reside in an apartment owned by him and provided to them on a rent free basis in exchange for minding their grandchild and doing some cooking and home maintenance for the son. The Tribunal accepts the evidence that in their home they share responsibilities of the household including inside and outside chores. Whilst they made plans to find a small house for themselves this is on hold as they are able to stay in the sponsor’s son’s apartment as long as they wish.

19.   This Tribunal notes the Tribunal previously constituted gave weight to the evidence of the parties as to how they do general everyday tasks but had serious concerns with inconsistencies in their evidence.

1. The Tribunal previously constituted accepted that there are multiple aspects to a relationship, and accepted that parties can have different recollections of incidents or a different view of the future. However that Tribunal considered there was clear inconsistent evidence of the conduct of everyday tasks indicative that the relationship may not be genuine.The Tribunal questioned the parties carefully about their relationship their everyday life and the "the big picture of their relationship". Whilst the Tribunal acknowledges the previous finding and comments on the evidence before it, the Tribunal finds plausible and consistent evidence given regarding a shared household consistent with a genuine relationship.

   Social aspects of the relationship

2. The Tribunal notes that weight was previously given to social recognition of the relationship: “the applicant and sponsor provided many photographs, which showed the applicant and sponsor in many social situations with many people and at a variety of locations. The sponsor's nephew gave evidence that he was living with his aunt when the applicant first came to Australia. He stated they are in a good relationship, recognized by their relatives. The Tribunal has considered the two statutory declarations provided to the Department by friends and work colleagues of the applicant that declare the parties are known to them and in a genuine relationship. The Tribunal accepts that the applicant and sponsor are known to many people within their community. The applicant and sponsor told the Tribunal that they have limited social activities but they go shopping and visiting together. The applicant also stated that they go to Temple together during the New Year. The applicant stated they visit friends and the sponsor's grandchildren together. The evidence of the social aspects of the relationship is evidence that the applicant and sponsor are known within their community. The Tribunal gives weight to the evidence of the sponsor’s nephew that the parties represent themselves as being married couple. The evidence of the social aspects of the relationship at the time of decision on balance indicates that the parties' relatives and friends have an opinion that they are in a spousal relationship, and that the parties undertake social activities together.

3. The Tribunal notes the parties have taken holidays together to Qld and NSW and socialize with local friends and work colleagues.

4. The Tribunal is satisfied in relation to social recognition of the relationship.

   Nature of persons' commitment to each other

5. The Tribunal has, amongst other matters, considered the length of the claimed relationship being some 8 years at the time of this decision. The Tribunal has also considered the evidence that the parties held a traditional engagement ceremony attended by family from both sides including the sponsor’s mother, son and siblings and the applicant’s parents, siblings and children.

6. In more recent times the Tribunal accepts that the parties have cared for each other when the applicant had a heart attack and the sponsor had eye surgery. The Tribunal is satisfied the parties see their relationship as long term.

7. Given these findings the Tribunal is satisfied that the requirements of s.5F (2) are met at the time of this decision. Therefore the applicant meets cl.801.221 (2) (c).

8. 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

9. 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 of Schedule 2 to the Regulations

   Mary Urquhart
   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 sub regulation (3).

   (3)The matters for sub regulation (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 sub regulation (2), the Minister may consider any of the circumstances mentioned in sub regulation (3).