Tuan (Migration)

Tuan (Migration) [2022] AATA 2917 (17 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Ha Thanh Tuan
CASE NUMBER:  1832929
HOME AFFAIRS REFERENCE(S): BCC2016/3186873 BCC2018/5561198 BCC2018/5561199 BCC2018/5561201
MEMBER:Tegen Downes
DATE:17 August 2022
PLACE OF DECISION:  Brisbane
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)(a) of Schedule 2 to the Regulations

Statement made on 17 August 2022 at 11:12am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – validly married – financial, household and social aspects of relationship and nature of commitment – applicant’s physical health and sponsor’s support – further evidence and supporting statements provided to tribunal – decision made without hearing necessary – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cl 820.211(2)(a)
CASE
He v MIBP [2017] FCAFC 206

statement of decision and reasons
application for review

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).
The applicant applied for the visa on 26 September 2016 on the basis of her relationship with her 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 delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.211(2) because the delegate considered that the evidence and information provided was not sufficient to demonstrate that the applicant was the spouse of her sponsor, as defined under s 5F of the Act.
Background
The applicant is a 30-year-old woman from Vietnam. The sponsor is a 34-year-old man from Australia.
The applicant and the sponsor claim to have met in December 2014. At the time, the applicant was working as a flight attendant with EVA Air. During a layover in Brisbane, the applicant and her colleagues attended dinner at the sponsor’s family restaurant, where the applicant and the sponsor were introduced. The applicant then spent a few days sightseeing in Brisbane with the sponsor before she returned to Vietnam.
The applicant and the sponsor claim that they entered their relationship before the applicant returned to Vietnam. They provided evidence that they stayed in contact via an online chat application and that they visited each other on several occasions in Australia and Vietnam before the applicant moved to Australia at the end of her employment contract with EVA Air in October 2016.
The applicant and the sponsor registered a civil partnership in Queensland on 8 April 2016 and were married in Queensland on 16 September 2016. Copies of the registration certificates were provided to the Tribunal.
The applicant applied for a Subclass 820 (Partner) visa on 26 September 2016. In support of the application, the applicant submitted, among other things:
a.Personal statements from the applicant and the sponsor outlining how they met, how their relationship developed, information about their domestic and financial arrangements and their plans for the future;
b.Statements about the nature of their household, the financial aspects of their relationship, the social aspects of their relationship and the nature of their commitments to each other, including supporting evidence, such as receipts from purchases, evidence of opening joint accounts, their online chat history and photographs; and
c.Statutory declarations from the sponsor’s father and five of the sponsor’s friends.
In April 2018, the Department of Home Affairs requested more information from the applicant to consider her application, including, among other things, current evidence of her relationship with the sponsor.
The applicant provided some additional information; however, no additional information was provided to demonstrate that the applicant was the spouse of the sponsor.
The delegate refused to grant the visa because of insufficient evidence. It is apparent from the decision record that the delegate had regard to the information provided in 2016 but was not satisfied with this evidence alone as it was not current at the time of decision.
On 22 October 2018, the applicant applied for a review of the decision. Between February 2020 and the date of this decision, the applicant provided additional evidence regarding the nature of her relationship with the sponsor.
The Tribunal did not invite the applicant to a hearing as the Tribunal considered that it should decide the review in the applicant’s favour on the basis of the material before it.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Consideration of claims and evidence
The issue in the present case is whether, at the time of application, the applicant’s relationship with the sponsor met the definition of spouse under s 5F of the Act, such that the applicant satisfied cl 820.211(2)(a) of the Regulations.
Whether the parties are in a spousal or de facto relationship
Subclause 820.211(2)(a) requires that at the time the visa application was made, 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.
‘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 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?
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 a marriage certificate, certifying that the couple were married in Kedron, Queensland, on 19 September 2016.
In the absence of any evidence to the contrary, the Tribunal is satisfied that at the time of the visa application, 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).
Financial aspects of the relationship
The applicant provided evidence with her visa application that the applicant and the sponsor opened joint bank accounts in July 2016 and that the applicant was made a secondary card holder on one of the sponsor’s bank accounts. She also provided evidence that the sponsor provided her with financial support, prior to her move to Australia.
The applicant has since provided evidence to the Tribunal, including:
a.joint bank account statements, which show salary payments made on behalf of the applicant and the sponsor and payments of day-to-day expenses, including rates, utility bills, telephone bills and groceries;
b.evidence that the applicant and the sponsor have set up and operate a business together, including information related to the business’ finances, which demonstrate, among other things, that the applicant and the sponsor have both guaranteed business loans; and
c.evidence that the applicant and the sponsor are both beneficiaries of a discretionary family trust.
Based on this evidence, the Tribunal is satisfied that the applicant and the sponsor have, during their relationship, pooled their resources, shared day-to-day expenses, and incurred joint liabilities.
There is no evidence that the applicant and sponsor jointly own any real estate or other major assets or that they owe any legal obligations in respect of the other. However, the Tribunal does not give the absence of such evidence any weight as the balance of the evidence regarding the financial aspects of the relationship is compelling.
Nature of the household
The applicant claimed at the time of her application that the sponsor lived with his parents in Kedron and that she stayed with them during her visits to Australia and when she first moved to Australia. The applicant claimed that there was no formal discussion regarding the division of domestic duties and that they shared whatever duties arose as part of staying together.
The applicant provided some corroboratory evidence for her claims, including statements of the sponsor and the sponsor’s father and documents addressed to the applicant citing the Kedron address.
The applicant claimed in a statement provided to the Tribunal that she continued to live with the sponsor and his parents until October 2017, at which time she and the sponsor moved to an investment property owned by the sponsor in Carindale, which had been vacated by the previous tenants. The applicant provided to the Tribunal various documents that cite the applicant and sponsor’s shared address at Carindale.
The Tribunal accepts the applicant’s evidence. It is partly corroborated by documentary evidence and there is no contradictory evidence before the Tribunal.
Based on this evidence and the evidence provided about the applicant and sponsor’s finances, the Tribunal is satisfied that the couple have lived together and shared responsibility for housework.
There is no evidence that the applicant or the sponsor are responsible for the care and support of any children.
Social aspects of the relationship
The applicant claimed that she and her sponsor have socialised with friends and family in Australia and Vietnam. The applicant provided with her visa application a selection of annotated photos to support her claims, as well as statutory declarations from the sponsor’s father and five of the sponsor’s friends. The Tribunal notes that the delegate gave this evidence ‘some weight’.
The applicant has since provided evidence to the Tribunal, including:
a.a copy of the invitation to the couple’s wedding reception on 24 May 2019;
b.evidence of joint holidays in Australia and overseas, including photographs, copies of train and plane tickets and travel insurance records;
c.photographs of the couple with family and friends;
d.tax returns for the applicant and the sponsor referencing each other as spouses;
e.a statement summarising the couple’s life together, including time spent with family and friends.
Based on this evidence, the Tribunal is satisfied that the couple have planned and undertaken joint social activities and that they have represented themselves to others as being married. The Tribunal is also satisfied that third parties have viewed the relationship as a genuine and committed one.
Nature of the persons’ commitment to each other
Having regard to the evidence referred to above, the Tribunal is satisfied that the sponsor’s relationship began in 2014 and that they maintained a long-distance relationship for approximately two years, during which time they maintained ongoing contact and regular visits.
The Tribunal is satisfied that the couple registered their relationship as a civil partnership in April 2016, became married in September 2016 and celebrated a wedding reception in May 2019.
The Tribunal is satisfied that since 2016, the applicant and the sponsor have lived together, entered business together and travelled together.
There is also evidence before the Tribunal that the applicant suffers from lupus and has been supported by the sponsor while unwell. The Tribunal accepts this evidence.
The Tribunal infers from all the evidence before it that the couple have drawn a degree of companionship and emotional support from each other and that they have seen the relationship as a long-term one.
Are the other requirements for a spousal relationship met?
Given the above findings, the Tribunal is satisfied that, at the time of the visa application, the applicant and the sponsor had a mutual commitment to a shared life to the exclusion of others, that their relationship was genuine and continuing and that they lived together or not separately and apart on a permanent basis.
On the basis of the above, the Tribunal is satisfied that the requirements of s 5F(2) are met at the time the visa application was made. Therefore, the applicant meets cl 820.211(2)(a).
In these circumstances, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.
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)(a) of Schedule 2 to the Regulations
Tegen Downes
Member

ATTACHMENT - Extract from the Migration Regulations 1994 (Cth)
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).

[2022] AATA 2917

17 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies