Truong (Migration)

[2022] AATA 3800

Truong (Migration) [2022] AATA 3800 (21 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Cong Sau Truong

REPRESENTATIVE:  Mr HUU LOC NGUYEN (MARN: 1795573)

CASE NUMBER:  1820966

HOME AFFAIRS REFERENCE(S):          BCC2016/1429899

MEMBER:Russell Matheson

DATE:21 October 2022

PLACE OF DECISION:  Sydney

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) of Schedule 2 to the Regulations.

Statement made on 21 October 2022 at 10:01am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – joint back account and financial responsibilities – two children from the relationship – joint care and support of the children – undertaking social activities as a family – emotional support and companionship – best interests of the children – decision under review remitted     

LEGISLATION

Marriage Act 1961
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 Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a male national of Vietnam born in May 1991. He applied for the visa on 8 April 2016 based on 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 (Cth) (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 because they were not satisfied the applicant was the spouse of the sponsor. The applicant seeks review of the delegate’s decision.

4. The applicant appeared before the Tribunal on 18 October 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. Thanh Tu Huynh, Van Sang Nguyen attended the hearing to give evidence but were not required. 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. The representative attended the Tribunal hearing.

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

   Background

7. The Applicant came to Australia on a Higher Education Sector (Subclass 573) visa in May 2013. The Applicant and the Sponsor have a common friend Ms An, who introduced them to each other, and they first met in a restaurant. Subsequently, the Applicant often visited the Sponsor to spend time with her and their relationship developed over time. The couple signed a marriage certificate on 19 March 2016 and celebrated their wedding party on 28 March 2016. On 8 April 2016, the Applicant lodged a Partner Visa Application on the grounds of being in a partner relationship with the Sponsor. On 5 April 2018, the Sponsor gave birth to son Arturo in April 2018 and to daughter Ivy in October 2019. There are two common children from the relationship. The sponsor has two children from her previous relationships Isabella and Madison.

   Consideration of claims and evidence

8. The issue in the present case is whether the applicant is the spouse of the sponsor as defined in s.5F of the Act.

9. The Tribunal has before it the applicant’s file from the Department of Home Affairs (the Department); its own file; and a copy of the Department’s decision provided by the applicant to the Tribunal.

10. The evidence the parties provided at the Tribunal hearing is recorded throughout this decision record.

    Whether the parties are in a spouse or de facto relationship

11. 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.

12. ‘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 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 reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

13. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant provided a copy of the marriage certificate registered under the Marriage Act 1961 indicating the applicant and sponsor were married at Fairfield, New South Wales, on 19 March 2016. There is no evidence before the Tribunal to indicate the marriage is not valid. 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).

14. In forming an opinion as to whether they are in a marital relationship and in considering whether they have a mutual commitment to a shared life as husband and wife to the exclusion of all others, whether their relationship is genuine and continuing, and whether they live together and not separately and apart on a permanent basis as defined in               s 5F(2)(b)-(d), the Tribunal has had regard to all the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship, the nature of the applicant’s and sponsor’s household and their commitment to each other as set out in          r 1.15A(3).

15. After careful consideration of all the evidence before it, the Tribunal has reached the conclusion that it is satisfied the applicant is the spouse of the sponsor within the meaning of s.5F of the Act. Below, the Tribunal sets out its consideration of the evidence under the relevant aspects of matters it must take into consideration under r 1.15A(3), and the reasons for its decision.

16. The Tribunal had the benefit of the applicant’s and the sponsor’s oral evidence at the hearing and found their evidence to be consistent and overall, persuasive and credible. The Tribunal gave all the evidence provided by the parties at the Tribunal hearing and evidence provided by the applicant to the Department and the Tribunal due regard. The applicant provided a significant amount of additional documentary and photographic evidence to the Tribunal.

17. The Tribunal acknowledges the delegate’s concerns set out in the primary decision record. The Tribunal discussed these with the applicant and the sponsor during the hearing and the Tribunal is satisfied that the parties were genuine and credible witnesses. 

    Are the other requirements for a spouse relationship met?

    Financial aspects

18. The Tribunal has considered the financial aspects of the relationship including any joint ownership of real estate or major assets, any joint liabilities, the extent of any pooling or sharing of financial resources, especially in relation to major financial commitments, whether any person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of daily household expenses.

19. The applicant and sponsor have previously provided documents to the Department with the visa application that include:

    ·    Joint Commonwealth Bank of Australia (CBA) statements for the period 1 October 2017 to 12 May 2018.

    ·    Joint purchase of major household items and wedding rings.

    ·    Family health cover.

    ·    Joint car insurance.

    ·    Applicant’s payslips.

    ·    Individual tax assessments.

    ·    Superannuation documents. 

    ·    Joint bond and tenancy agreement.

    ·    Tennant Trust Ledger Report indicating rental payments.

    ·    Copies of utility bills.

    ·    Postal items addressed to the applicant and sponsor individually and jointly at their previous address in Cabramatta.

    ·    Personal statements.

    ·    Photographs.

    ·    Form 888 Statutory declarations.

    ·    Joint domestic and travel accommodation

    ·    Club memberships,

    ·    Mobile phone records.

    ·    Wedding and baby photographs

    ·    Birth certificate for son Arturo and

    ·    Written submissions from the parties representative.

20. The parties have provided a significant amount of documentary evidence and photographic evidence for the Tribunal to consider that includes:

    ·Joint CBA bank statements for the period of 31 December 2019 to 30 June 2022.

    ·Statutory declarations from the applicant and sponsor and six from friends.

    ·Written submissions from the parties representative.

    ·Birth certificates for two common children born to the relationship Arturo born in April 2018 and Ivy born October 2019; and

    ·Centrelink profile of the sponsor.

21. There is evidence previously submitted to the Department that the parties have operated a joint CBA account and that the applicant’s wages were deposited into it when working at a hotel as a kitchen hand. Additionally, the sponsors Centrelink payments were also deposited directly into the joint account. They have provided evidence of jointly paying household bills, utility bills, rent, purchasing household items, taking out health and car insurance cover together and notifying the Australian Tax Office (ATO) of their relationship. The applicant has also made the sponsor a 100% beneficiary of his Hostplus superannuation. The CBA joint account #6291 has been utilised from the beginning of their relationship and shows the parties using individual debit cards for day-to day living expenses over a significant period to the present. 

22. The parties provided a significant amount of additional documentary evidence to the Tribunal regarding the financial aspects of their relationship. They gave evidence that they operated a joint CBA bank account, and the sponsor had her own personal CBA account that she transferred money into as savings to mitigate medical costs for her children, who have several health issues. The parties gave evidence that the sponsor receives Centrelink payments that are deposited into the joint account and the applicant has no personal accounts. The applicant stated that he has been unemployed for the past four years and has been assisting the sponsor raise their four children, two common and two stepchildren. The parties gave evidence that the sponsor has been struggling with post-natal depression and anxiety after the birth of her children, with the children having several health issues (podiatry, dentistry, asthma and down syndrome). The applicant further stated that he is doing work experience as a kitchen hand at a local restaurant and is attempting to return to the work force part time to assist with the costs of raising their children. The parties gave evidence that they are currently living with the sponsor’s widowed mother and that they make contributions to the household expenses when they can due to their limited financial resources. The Tribunal accepts that the parties have previously pooled and shared their financial resources and that there is a preparedness to do so in the future when the applicant is gainfully employed.  

23. The parties gave evidence that they have notified government agencies (ATO/Centrelink) regarding the status of their relationship.

24. Overall, the Tribunal finds that there is significant evidence before it to demonstrate that the applicant and sponsor have pooled or shared their financial resources at the time of decision. The applicant and sponsor provided detailed evidence regarding their employment, individual incomes, rental payments, household bills, household purchases and medical bills, which collectively demonstrate the pooling and sharing of their financial resources and future financial plans.

25. There is no evidence before the Tribunal that the parties have any joint ownership of real estate, major assets, joint liabilities or any one person in the relationship owes any legal obligation in respect of the other. The applicant has provided significant information regarding the financial aspects of the parties’ relationship in relation to pooling and sharing financial resources or sharing daily living expenses. The Tribunal places positive weight on this aspect of the relationship.

    Nature of the household

26. The Tribunal has considered the nature of the household, including any joint responsibility for the care and support of children, the living arrangements and daily routine of the parties and the sharing of the responsibility for housework, to form an opinion as to whether the parties are living together and not living separately and apart on a permanent basis.

27. The applicant and sponsor in their written submissions and oral evidence gave detailed and consistent evidence about their living arrangements and the Tribunal found them to be persuasive, genuine and credible. The Tribunal is satisfied that the parties live together. The parties provided a significant amount of photographic evidence of living in a family and home environment. The parties provided evidence of sharing the household duties and responsibilities and discussed their individual tasks in detail particularly about caring for their children and the workload. They have provided consistent evidence of their living arrangements and details about their daily lives, employment, income, work hours, health issues and social activities. The parties provided significant documentary evidence and correspondence in individual and joint names indicating that they have lived together for a significant period at their previous address in Cabramatta and their current address in St Johns Park NSW.

28. The parties provided significant evidence of their joint responsibility, care and support of their four children (two common). Although, the sponsor mentioned that her mother was the primary carer for one of her children (Madison) who has down syndrome, they all live under the same roof sharing responsibilities for the care and support of the child. The applicant provided various documents with his primary application and additional evidence to the Tribunal in relation to this. Significantly, the applicant provided to the Tribunal the birth certificate of the couple’s two common children (Arturo and Ivy). The birth certificates identify the applicant and the sponsor as the children’s parents.  Additionally, the applicant attended the children’s births at Fairfield Hospital on both occasions.

29. On the evidence provided, the Tribunal is satisfied that the parties live together, and that they have established a joint household and share the responsibility of the housework. Furthermore, the Tribunal is satisfied that they share joint responsibility for the care, comfort and support of their two common children born of the relationship and two stepchildren.

    Social aspects

30. The Tribunal considered the social aspects of the relationship, including whether the parties represent themselves to other people as being married to each other, the opinions of friends and acquaintances about the nature of the relationship, and any basis on which the parties plan and undertake social activities.

31. The parties provided a significant amount of documentary and captioned photographic evidence of their social activities together in a variety of settings and attending significant events such as birthdays, weddings, holidays, travel and the birth of their two common children.

32. They provided evidence of club membership and that they are socially recognised as husband and wife and engage frequently with family, friends and previous work colleagues, presenting themselves as being in a committed spousal relationship. The parties also provided statutory declarations and Form 888 declarations from friends attesting to the genuineness of their relationship although giving little insight into the inception and development of the relationship over time. The Tribunal places little weight on the declarations made as convincing evidence of the parties being in a genuine and continuing relationship. The parties gave evidence that due to their current financial situation and due to having to provide care, comfort and support to their children, their social activities at present are somewhat limited. The Tribunal is satisfied they plan and undertake joint social activities and represent themselves to others as being married to each other. The Tribunal accepts that the parties’ family and friends believe that they are in a genuine and continuing spousal relationship. Overall, the Tribunal accepts that family and friends believe the parties’ relationship to be genuine and their relationship is supported by their families.

33. The Tribunal is satisfied they plan and undertake joint social activities and represent themselves to others as being married to each other. The Tribunal accepts that the parties’ family and friends believe that they are in a genuine and continuing spousal relationship. The Tribunal is satisfied that there is family support for the relationship.

34. The Tribunal places some positive weight on the social aspects of the relationship.

    Commitment

35. The Tribunal has considered the nature of the parties’ commitment to each other, including the duration of the relationship, the length of time the parties have lived together, the degree of companionship and emotional support they provide each other and whether the parties view the relationship as a long-term one.

36. The applicant and sponsor claimed to have met at a restaurant in Canley Vale in 2015 after being introduced to each other by a common friend. Their relationship developed romantically over time, and they entered a committed relationship in February 2016 and married in March 2016. They have provided a copy of the marriage certificate registered pursuant to the Marriage Act 1961 (Cth) in Fairfield, New South Wales, on 19 March 2016. The Tribunal accepts the parties are lawfully married and have been in a relationship for over six years.

37. The parties provided evidence that since meeting and entering a committed relationship and living together they have provided each other with the emotional support, care and companionship that is expected of a married couple. They further stated that they have expressed to their family and friends in Australia and Vietnam that they are in a committed relationship and they themselves believe that their relationship is a long-term one.

38. They provided strong evidence of having cared for and supported each other during highly emotional times and times of financial hardship, especially during COVID-19 when they were not working. They also expressed their love for each other and spoke about their future and their plans of someday opening their own restaurant. They stated that they provide comfort, and emotional and physical support to each other in all aspects of their daily lives. The applicant provided evidence of listing the sponsor as the 100% beneficiary of his superannuation.  

1. The parties described their immense empathy and commitment towards each other and described how they have worked together to face and address any problems they have had raising their four children and addressing their children’s health issues and medical bills. The sponsor at the hearing expressed how the applicant had emotionally supported her after the death of her father in 2017 and during post-natal depression, and associated anxiety and stress. She expressed having concerns about the applicant’s visa situation and how she would not be able to cope with the pressure of raising her children on her own. The Tribunal places significant weight on the fact that the couple have two common and two stepchildren together and that both are committed to the children’s upbringing. The parties provided a copies the common children’s birth certificates (Arturo and Ivy) showing that the children were born at Fairfield Hospital in April 2018 and October 2019 and indicating that the sponsor and applicant are the parents. The Tribunal accepts the children are Australian citizens born from the relationship. The Tribunal places significant weight on the birth of the children who are Australian citizens. This also suggests that they view the relationship as a long term one.

2. The Tribunal questioned the sponsor why she did not participate in DNA testing when it was offered by the Department. The sponsor replied that she felt insulted that her integrity was in question about who the parents of her children were as she had always been in an exclusive relationship with the applicant. The Tribunal found the sponsor to be genuine and convincing and her response plausible.

3. The Tribunal is of the view that separating parents from their children during an early developmental phase would be an undesirable outcome which would impact the health and future outcomes for a child. The bond that children develop with their parents, particularly as babies and toddlers, is fundamental to their flourishing and children without secure parental bonds are more likely to have behavioural and literacy problems. (Moullin, Sophie; Waldfogel, Jane; Washbrook, Elizabeth, Baby Bonds: Parenting, Attachment and a Secure Base for Children, March 2014).

4. The Tribunal is satisfied that the parties see their relationship as stable, mutually supportive and long-term. The Tribunal considers their evidence about their commitment to each other to be persuasive, genuine and credible.

5. The Tribunal notes that the applicant and the sponsor were able to articulate the reasons for their decision to form a relationship and spoke of their common interests, expectations and future together as a family unit.

6. The Tribunal is satisfied that the applicant and the sponsor derive a strong degree of companionship and emotional support from each other that is commensurate with a couple being in a genuine and continuing relationship. The Tribunal is satisfied the couple view their relationship as a long-term one.

7. The Tribunal is satisfied, having regard to the totality of the circumstances and the evidence provided, that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others. The Tribunal is satisfied their relationship is a genuine and continuing relationship and that they do not live separately and apart on a permanent basis.

   Findings

8. The Tribunal is satisfied, having had regard to the totality of the circumstances and the evidence provided at the hearing, that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others. The Tribunal is satisfied their relationship is genuine and continuing. The Tribunal is satisfied they live together and not separately and apart on a permanent basis. Having considered all the evidence and the circumstances of the relationship as detailed above, the Tribunal is satisfied the parties were in a spousal relationship at the time of application.

9. The Tribunal is satisfied that the sponsor is not prohibited from being a sponsoring partner and continues to sponsor the applicant. The Tribunal is satisfied that the sponsor, at the time of the visa application and decision, was an Australian citizen who had turned 18.

10. The applicant’s movement records provide evidence of him having been the holder of a Higher Education Sector (Subclass 573) visa at the time of application that was valid until 30 September 2017. He held this substantive visa upon applying for the Partner (Temporary) (Class UK) Subclass 820 visa on 8 April 2016. As the applicant held a substantive visa at the time of application, further requirements in cl.820.211(2)(d) need not be met.

11. Based on the above the Tribunal is satisfied that the requirements of s.5F(2)(b)-(d) of the Act were met at the time the visa application was made and are met at the time of this decision.

12. Therefore, the applicant meets cl.820.211(2) and cl.820.221(1)(a).

13. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for a Subclass 820 visa.

    DECISION

14. 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.

    Russell Matheson
    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).