Tunnage (Migration)

[2023] AATA 341

Tunnage (Migration) [2023] AATA 341 (20 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Brent Nigel Tunnage

VISA APPLICANT:  Ms Hong Tham Nguyen

REPRESENTATIVE:  Ms Jennifer Nguyen (MARN: 2117717)

CASE NUMBER:  2101211

DIBP REFERENCE(S):  BCC2020/2499844

MEMBER:Peter Emmerton

DATE:20 February 2023

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211 of Schedule 2 to the Regulations

·cl.309.221 of Schedule 2 to the Regulations

Statement made on 20 February 2023 at 10:18am

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – regular international visits – substantial evidence of correspondence conveying mutual support – substantial money transfers – awareness of living arrangements – evidence of traditional Vietnamese marriage celebrations – wide-ranging support statements – pandemic travel restrictions separation – decision under review remitted 

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 309.211, 309.221; 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 on 3 December 2020 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 20 October 2020 on the basis of her relationship with her sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 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.309.211 because they were not satisfied that the couple were in a genuine spousal relationship.

4. The applicants were represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the couple are in a genuine spousal relationship as defined by section 5F of the Act.

7. In determining the applicants’ claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and the importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their individual circumstances.

8. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the Department.

   Whether the parties are in a spouse or de facto relationship

9. Clauses 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa 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 visa applicant claims to be the spouse of the review applicant who is an Australian Citizen.

10. ‘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 review applicant’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?

11. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The delegate accepted a Marriage Certificate as evidence that the couple were legally married. The Certificate is dated 20 March 2020, issued by the Commonwealth of Australia for a Marriage which took place in Yarrawonga, Northern Territory, Australia. The Tribunal also accepts this evidence and has viewed copies of the documents. On the evidence, the parties are 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?

12. In forming an opinion whether they are in a spousal relationship, consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects, the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.15A which is attached to this decision.

13. The applicant, Ms Hong Tham Nguyen, lodged a valid application for a Class UF Partner (Provisional) and BC Partner (Migrant) visa on 20 October 2020 on the grounds of being in a spousal relationship with an Australian citizen, Mr Brent Nigel Tunnage.

14. The visa applicant is a female Vietnamese national by birth, who has declared no previous marriage relationship or children.

15. The sponsor is an eligible New Zealand citizen who has declared no previous married relationship nor children.

16. The Department has declared the DOB of the sponsor and the DOB of the applicant. The Tribunal has viewed copies of both individuals Passports. The Tribunal accepts this as fact and therefore it is agreed that both parties have met personally since turning 18.

17. Both the visa applicant and the sponsor are therefore greater than 18 years of age.

18. The sponsor travelled to Vietnam on 13 February 2017. The applicant’s aunt – Le, Thi Phuoc Dung is the Sponsor’s friend. The applicant and the sponsor first met on 15 February 2017 at a restaurant in Ho Chi Minh City with the applicant’s aunt. The couple subsequently began to contact each other regularly via text messaging and phone conversations. It is claimed that the Applicant and the Sponsor began their relationship with each other soon after the initial meeting.

19. On 10 April 2019, the applicant arrived in Australia to celebrate the Easter holiday with the sponsor. The applicant returned to Vietnam on 26 June 2019. After the first trip to Vietnam, the Applicant also made another 3 trips to Australia; and they were from 07 August 2019 to 04 November 2019, 20 November 2019 to 14 January 2020, and the last one was from 06 February 2020 to 22 March 2020. The couple legally married on 20 March 2020 in the Northern Territory, Australia.

20. The visa applicant was unable to travel to Australia during the Covid-19 pandemic, nor subsequently due to the denial of visitor visa applications. The Tribunal has checked Department travel records and notes the correlation with the claimed travel undertaken by the sponsor and the applicant and the lack of travel by the visa applicant other than her initial trip to Australia. It also observes that 2 visitor visa applications made by the visa applicant were refused in the latter half of 2022 when it once again became possible to travel between the 2 countries as Covid-19 travel restrictions and border closures had ceased.

21. The Tribunal notes from the travel records the sponsor has not travelled on a regular basis to Vietnam since the original meeting. He undertook 1 trip in January 2023 once border closure and travel restrictions had normalised. It is also aware that the nature of his employment makes it difficult to travel through time zones as he must be alert for his trans-continental trucking journeys. This in effect requires at least a week to normalise sleep patterns post travel to ensure safety standards are adhered to. The Tribunal accept this is challenging to undertake.

22. The Tribunal has had the benefit of receiving substantial additional evidence from the sponsor as well as from the visa applicant.

23. The following evidence provided to the delegate and the Department was provided to the Tribunal prior to the decision being made.

    ·Application for migration to Australia by a partner made by Brent Nigel for Hong Tham Nguyen dated 20 October 20

    ·Department of Home Affairs application visa 309 status (Received)

    ·Department of Immigration Personal identifying information form (1243i)

    ·Marriage Certificate between Tham Hong Nguyen and Brent Nigel Tunnage dated 20 March 2020

    ·Foreign passports belonging to Nguyen Thi Phuong and Nguyen Hong Tham

    ·Various Identifying documents of Brent Nigel Tunnage

    ·Department of Home Affairs notification of a grant for a visitor visa (subclass 600) dated 27 March 2019

    ·Statutory Declaration by a supporting witness in relation to a partner visa by Thi Phuoc Dun LE dated 7 October 2020

    ·Statutory Declaring by a supporting witness in relation to a partner visa by Lang Thi TRAN declared on 6 October 20 authorised on 7 October 20

    ·Financial Statements and various transaction documents

    ·Plane ticket images from various dates

    ·Various images of the applicant and the sponsor

    ·Sponsorship for a partner to migrate to Australia form made by Brent Nigel dated 20 October 2020

    ·Department of home affairs request for information for a partner (Subclass 309) dated 23 October 2020

    ·Advice by a registered Agent/exempt person of providing immigration assistance form (956) dated 21 October 2020

    ·Various SMS

    ·Letter of impact translated by Nguyen Hong Tham dated 22 October 2020

    ·Department of home affairs notification of refusal dated 3 December 2020

24. The following evidence was provided to the Tribunal prior to the decision being made.

    ·Outline of submission and submission of representative, dated 14 February 2023

    ·Statutory Declaration of Brent Nigel Tunnage, Review Applicant, dated 17 January 2023

    ·Statutory Declaration of Brent Nigel Tunnage, Review Applicant, dated 6 December 2022

    ·Statutory Declaration of Thi Phuoc LE, occupation “Beauty”, dated 19 December 2022

    ·Witness statement of Hong Tuoi Nguyen, elder sister of Visa Applicant, dated 14 December 2022

    ·Witness statement of Thi Phuong Nguyen, friend of Visa Applicant, dated 14 December 2022

    ·X 15 - Vietnamese bank money transfer statements appearing to show AUD money transfers totalling approx. AUD $7,400, between February and December 2022

    ·Vietnamese bank transfer summary of AUD $5,061.379.00 between 6 April 2021 and 12 June 2021

    ·Evidence of travel to Vietnam in February 2023 by Review Applicant

    • X17 Vietnamese bank money statements showing AUD money transfers totalling approx. AUD $29,100 between October 2020 and December 2021

    ·Wedding announcement / invitation, party menu, contract and associated photographs

    ·Photographs continued of wedding announcement party and travel/social photos

    ·Approximately 904 pages of SMS communications which contained multiple photographs

25. The Tribunal has considered all aspects of the relationship.  

26. The Tribunal has determined that there is a demonstrated clear mutual commitment to a shared life together. This is initially indicated by the fact the couple are legally married and they have declared their marriage to a government body in Australia. It is also indicated by the fact that despite being separated for the majority of approximately 3 years post marriage, the review applicant and visa applicant appear to have remained mutually committed to each other. The evidence demonstrates their relationship has survived the time they have been forced to spend apart.

27. The review applicant’s relationship statements displayed an understanding of each other’s lives and shows a genuine mutual interest. They appear to support one another in all aspects of their life, that is, financially, socially, and emotionally in-spite of the limitations imposed by distance, the Department refusing to approve visitor visas for the applicant and the Covid -19 pandemic. This was reinforced by the multiple written statements and Statutory Declarations provided to the Tribunal in addition to those originally submitted to the Department. It is unambiguously stated by the declarants that they believe the couple are in a genuine and ongoing spousal relationship. The relationship is in the view of the Tribunal both genuine and continuing.

28. There is no evidence before the Tribunal that the visa applicant and the review applicant have any intention to live separately apart on a permanent basis. The current separation was imposed upon them by the confluence of the Covid 19 pandemic, the applicant’s 2 visitor visa refusals and this visa refusal issued by the Department.

    Financial Aspects of the Relationship

29. In relation to the financial aspects of the relationship between the applicant and the sponsor, the Tribunal has considered joint asset ownership, joint liabilities, pooling of financial resources, legal obligations and the sharing of daily household expenses.

30. In relation to any joint ownership of real estate or other major assets, the Tribunal has determined that the couple do not jointly own any major assets or real estate. This is not in the opinion of the Tribunal unusual for a couple currently housed in two different countries, planning to live together in Australia in the future. It also notes the volatility of the sponsors base location for employment.

31. The Tribunal accepts the documented evidence in the form of money transfer receipts between the couple. The Tribunal has examined the receipts proffered and is satisfied that they are genuine. It notes that in excess of AUD $33,300 has been sent to the visa applicant by the sponsor, claimed to assist with household expenses. This averages in excess of AUD $950-00 per month since the couple married. This is not an insubstantial sum of money. The magnitude suggests that this is not merely “window dressing” for the purposes of the current visa application and AAT review processes. It is further noted that the receipts / statements indicate that the monies are for the purpose of ‘Family Assistance’.

32. The Tribunal accepts the evidence that the visa applicant and the sponsor are relatively financially secure with both members of the couple earning relatively substantial incomes. Pay Slips have been provided for the Tribunal’s perusal. The Tribunal further notes the Statutory Declaration made by the sponsor on 6 December 2022 attesting to his wife’s employment and income.

33. It is noted from the receipts submitted that the couple shared financial responsibility during the Vietnam trip of the sponsor in January 2023. It appears they paid for the hotel and other expenses together.

34. The Tribunal acknowledges that a Term Deposit Certificate owned by the applicant has been submitted which indicates a deposit in Vietnamese currency equivalent to approximately AUD $12,500.

35. The Tribunal received no evidence that the couple have any joint liabilities.

36. It also appreciates that it is not usually possible to establish a joint bank account with a foreign national as a direct result of Australia’s appropriately stringent “money laundering” legislation. The Tribunal notes the intention to establish joint banking arrangements once possible, which is unsurprising in the current geographic circumstances.

37. Whether one person in the relationship owes any legal obligation in respect of the other. The Tribunal has determined that aside from the usual legal obligations associated with a marriage, the couple have provided no evidence to indicate additional legal obligations nor has any such evidence been provided by external sources.

38. The basis of any sharing of day-to-day household expenses. The Tribunal acknowledges that the couple have lived apart for a considerable period of time post marriage. Therefore, there is moderate verifiable evidence of day to day sharing of household expenses aside from the financial contributions associated with substantial regular transfer of monies to the applicant and visits made by the sponsor to the visa applicant’s home. The main evidence for that was the joint travel made by the couple as evidenced by hotel receipts and the substantial regular transfer of funds to the applicant from the sponsor. The Tribunal accepts this evidence as factual and has no evidence before it to the contrary.

39. The Tribunal places substantial weight on the evidence in support of the financial aspects of the relationship, whilst accepting the limitations imposed by the ongoing geographic separation.

    Nature of the Household

40. In relation to the nature of the household aspects of the relationship between the applicant and the sponsor, the Tribunal has considered the following.

41. Any joint responsibility for the care of children. The Tribunal notes that the couple have not commenced a family and there is no evidence before it that there is any intention to do so. 

42. Neither the sponsor nor the applicant currently has responsibility for children.

43. The living arrangements of the visa applicant and the sponsor were researched. The couple have principally been separated by geography post their marriage for a substantial period of time. The separation is not of their making as previously stated. However, when the opportunity has arisen for cohabitation, it has occurred. It is indicated the visa applicant will live with her husband on a permanent basis. This was as stated previously and corroborated by written witness statements, Statutory Declarations, and Department travel records. The Tribunal accepts this evidence as accurate and has no evidence before it which would indicate the contrary view.

44. Any sharing of responsibility for housework. The claim that household duties were shared when the couple live together in Vietnam and Australia. There is no way to accurately verify these claims however they are accepted as reasonable and probable.

45. The Tribunal places only moderate weight on the cumulative evidence presented in relation to the nature of the household due to the extraordinary external circumstances previously detailed which have been inflicted upon the couple.

    Social Aspects

46. In relation to the social aspects of the relationship between the applicant and the sponsor, the Tribunal has considered the following.

47. The review applicant, (sponsor) and visa applicant claimed that they present themselves to society as a married couple and as a couple in a committed relationship. The Tribunal has formed the view that this is reasonable to accept from the fact that the review applicant and primary applicant have provided very substantial photographic evidence of themselves in a range of social settings in the presence of immediate family, extended family and friends. These photographs have been curated across a substantial time-period. The Tribunal has carefully examined all the photographs, including those showing the couple’s celebration of their marriage announcement in Vietnam in January 2023.  The Tribunal is aware of the social norms in Vietnamese society that prohibit a wedding taking place within 3 years of the of the applicant’s father’s death, which is claimed to have occurred in 2021. There is no evidence before the Tribunal to suggest the stated death is not accurate.  

1. It is noted that none of the photographs are opulent nor carefully curated in a formal studio style. This is as would reasonably be expected in a marriage taking place in a community that values connection to family and friends, societal traditions and social connection far more than material possessions. The photographs demonstrate a range of expected celebratory behaviours and traditions the Tribunal associates with traditional Vietnamese marriages. The Tribunal notes that the legal Marriage ceremony has already taken place in Australia. This is a marriage taking place for both parties who are more senior in age. Therefore, it is unsurprisingly less opulent than a marriage and associated celebrations might be expected to show if the couple were in a more youthful phase of their lives. However, as stated the key elements are present and there is substantial evidence of family witnessing the celebration and interacting in a wide range of social circumstances normally expected to be observed.

2. Substantial additional photographic evidence was provided to the Tribunal that was not available to the delegate at the time of their decision. This included photographic curatorial evidence of their recent holiday together.

3. The Tribunal notes and accepts as fact that the couple have been unable to spend much time together due to the travel restrictions imposed by the Covid-19 pandemic and the Department. This has naturally made it difficult to amass large quantities of evidence over substantial time periods demonstrating social engagement.

4. They claim that in the applicant’s community and families in Vietnam and Australia, the sponsor’s friends and family in Australia, as well as in the relevant community in Australia, the couple are known to be a married couple.  This is demonstrated in the wide-ranging Statutory Declarations and statements presented to the Tribunal. In the Tribunal’s past experiences of this culture, if the community did not in fact view the couple as married and committed to their relationship, they would have been shunned for having an affair out of wedlock. This would be particularly poorly viewed by an in-situ traditional Vietnamese community and senior members of the respective diaspora in Adelaide.

5. The Tribunal places substantial weight upon the cumulative evidence provided in support of the social aspects of their relationship in combination with the circumstances of the relationship participants.

   Nature of the Commitment

6. In relation to the nature of the persons’ commitment to each other, the Tribunal has considered the following.

7. The duration of the relationship. The Tribunal was, as already stated, presented with a range of written testimony, clearly showing that the relationship evolved over a substantial time-period from their initial meeting and then their marriage in 2020, up until the present day, (approximately 5 years from the first meeting in Vietnam). The circumstances of their meeting and relationship development have been scrutinised by the Tribunal. Major issues, such as when the relationship commenced, the wedding date, the subsequent living arrangements over time and the understanding of the respective families and friends and their desire to see the couple reunited and establish a life together, have all been detailed and cross-referenced appropriately with written Statutory Declarations and associated evidence.

8. The length of time they have lived together. As previously stated, the couple have not lived together for lengthy periods of time, due to circumstances the Tribunal accepts are out of their control. The Covid-19 pandemic has created extraordinary circumstances for couples separated which complicates the gathering of evidence which would otherwise be easily available under normal conditions.  It accepts that they have lived together as man and wife post the marriage for as long as practically possible, which has been for a very brief time. It also notes that travel restrictions and visa refusals made reunification more difficult, the Tribunal is mindful this was not of their making.

9. The degree of companionship and emotional support that the persons draw from each other. The Tribunal was convinced by the written testimony of the couple, which was supported by the various Statutory Declarations/statements and witness testimony that the relationship is mutually emotionally nourishing. The Tribunal is in no doubt that substantial mutual emotional support is provided to the visa applicant and the sponsor and accepts that this is likely to continue, into the future, when they are allowed to reunite on a permanent basis.

10. The Tribunal determines that the substantial evidence provided to demonstrate regular ongoing communication between the visa applicant and the sponsor further strengthens the body of evidence supporting the genuineness of this relationship. Evidence was presented to demonstrate to the Tribunal that electronic communication devices and methodologies are regularly employed. The Tribunal has on file greater than 900 pages of communication and embedded photographs between the couple. This is in addition to the documentation previously submitted to the Department. Further corroboration is provided by witness statements.

11. The Tribunal once again refers to the fact that the couple have been attempting to start a life together for nearly 3 years since their marriage and 5 years since their initial introduction by a family member. This in-itself demonstrates a degree of commitment.

12. The Tribunal has perused copies of a Declaration of Temporary Residence for Foreigners form declared to the Ho Chi Minh City Public Security. This is a public acknowledgement of a relationship declared as required by the laws of Vietnam.

13. The Tribunal again refers to the evidence presented showing the couple’s celebration of their marriage announcement in Vietnam in January 2023. The evidence provided includes appropriately photography, receipts for a celebration, menu of the celebration meal and the Wedding announcement printed invitation. As stated, the Tribunal is aware of the social norms in Vietnamese society that prohibit a wedding taking place within 3 years of the of the applicant’s father’s death, which is claimed to have occurred in 2021. This is a very public display of a solid commitment which would not be considered insignificant within contemporary Vietnamese society.

14. The Tribunal places substantial weight upon the cumulative evidence provided in support of the couple’s commitment to each other.

15. 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 and the time of this decision.

16. Therefore, the visa applicant meets cl.309.211 and cl.309.221.

17. 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 309 visa.

    DECISION

18. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.211 of Schedule 2 to the Regulations

    ·cl.309.221 of Schedule 2 to the Regulations

    Peter Emmerton
    Member

    
    

    Attachment  - Extract from Migration Regulations 1994

    1.15ASpouse

    (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).