Van (Migration)

[2019] AATA 4227

Van (Migration) [2019] AATA 4227 (11 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Quang Vinh Van

VISA APPLICANT:  Mr Phu Qui Do

CASE NUMBER:  1812874

DIBP REFERENCE(S):  BCC2017/2341922

MEMBER:Stephen Witts

DATE:11 September 2019

PLACE OF DECISION:  Melbourne

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

·r.2.03A

Statement made on 11 September 2019 at 12.36am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – genuine spousal partners – shared day-to-day household expenses – parties represent themselves as being in genuine spousal relationship – consistent and credible evidence – joint social activities – companionship and emotional support – mutual commitment to shared life to exclusion of others – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65
Migration Regulations 1994 (Cth), rr 1.09A, 2.03A, Schedule 2, cls 309.211, 309.221       

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 2 May 2018 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 30 June 2017 on the basis of his relationship with his 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 of the delegate was not satisfied that the first named visa applicant was a spouse of the sponsor. As the first named visa applicant did not satisfy the relevant primary criteria, the delegate found that the second named visa applicant could not meet the relevant secondary criteria.

4. The review applicant appeared before the Tribunal on 11 September 2019 to give evidence and present arguments.

5. The review applicant was represented in relation to the review by his registered migration agent. The visa applicant provided evidence on the phone.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the first named visa applicant is a spouse of the review applicant within the meaning of s.5F(2) at the time of application and the time of decision.

   SPOUSE/DE FACTO (cl.309.211(2), cl.309.221)

   Whether the parties are in a spouse or de facto relationship

8. Clause 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 de facto partner of the review applicant who is an Australian citizen.

   Are the parties in a de facto relationship?

9. ‘De facto partner’ is defined in s.5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2).

10. In forming an opinion whether they are in a de facto relationship, consideration must be given 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.1.09A(3) which is attached to this decision. Each of the specific matters contained in r.1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

11. According to the delegate’s decision record dated to May 2019, provided to the Tribunal by the applicants, the applicants made valid combined applications for a Partner(Temporary) (Class UF) (Subclass 309) visa and a Partner (Residence)(Class BC)(Subclass 100) visa on 30 January 2017. According to the delegate the basis for the application made by the visa applicant is that he is the de facto partner of a person who is an Australian citizen.

12. According to the delegate the applicants are not in a married relationship and that therefore the assessment was based on the applicants’ de facto status.

13. According to the delegate Mr Phu Qui Do is a 38-year-old male from Vietnam. He has declared that he divorced his first wife in March 2014 and that there are no children from this relationship.

14. According to the delegate Mr Quang Vinh Van is a 45-year-old Australian citizen who resides in Sunshine North, Victoria. He married his wife in August 2010 and divorced her in June 2014 and there were no children from their relationship.

15. According to the delegate the visa applicant first arrived in Australia with his ex-wife on a subclass 573 student visa on 11 October 2008. The visa applicant claims to have separated from his ex-wife in September 2010 and they divorced in March 2014.

16. According to the delegate the applicants stated that they first communicated via Facebook on 5 October 2013 and that they first met each other on 6 October 2013. According to the delegate the applicants claim to have started a relationship since that time. The applicants have claimed that they started living together in Monash Street, Sunshine North from December 2014 until the visa applicant’s departure from Australia on 9 June 2017.

17. According to the delegate the review applicant travelled to Vietnam on 26 August 2017 and returned on 3 September 2017. He then made another trip to Vietnam on 27 January 2018 and then departed Vietnam for Australia on 22 February 2018. According to the delegate departmental systems indicate that the review applicant has not departed Australia and the visa applicant has not travelled to Australia since 22 February 2018. The review applicant presented evidence to the Tribunal at the hearing that demonstrated that he has visited the visa applicant in Vietnam on a number of occasions since that time most recently in February 2019 where they travelled together on holidays and spent some time together.

18. According to the delegate the visa applicant travelled to Australia on 11 October 2008 with his ex-wife on a subclass 573 student visa. The delegate has stated that this visa was cancelled on 2 December 2013 and that the visa applicant did not depart Australia until 9 June 2017. The delegate was concerned by this information as given that the visa applicant had a history of breaching his visa conditions and only regulated his status after he had secured a sponsor and that this raised concerns as to whether the visa applicant is committed to the relationship. The view of the delegate was that this relationship is contrived in order to obtain residence in Australia and that the visa applicant would only remain in the relationship until he gained permanent residence in Australia. The Tribunal had a discussion with the applicants about this. The review applicant explained that at that time he was actually not aware that the visa applicant was unlawful. The visa explained that he realised he was unlawful but by the time his visa was cancelled he had met and was in a relationship with the review applicant and wanted to stay with him.

19. The Tribunal has considered all the evidence provided in the delegates file and in the AAT file, as well as evidence presented at the hearing. Specifically, the Tribunal has considered various material provided in the AAT file including photographs from 2018, travel documents, holiday tour documents, statutory declarations from various associates of the applicants who reside here in Victoria including from one of the applicant’s landlords, fellow workers, the visa applicant’s nephew, and others known to the applicants, various records of money transfers to the visa applicant, witness statements from Vietnam including from a brother-in-law of the visa applicant, and from a half-sister, and an older brother and sister, and other material. It also includes material in the delegate’s file including records of interview, relationship statements from 2017, a statutory declaration from the review applicant, other statements of relationships statutory declarations from friends and associates, a household registration book, a CV from the visa applicant and other material.

    ·Financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

20. The Tribunal had a discussion with the review applicant regarding the financial aspects of the relationship. The review applicant confirmed and was able to demonstrate that he has sent over regular amounts of money amounting to several thousand Australian dollars to the visa applicant over the last year or so. The review applicant was able to provide evidence that during this period of time the visa applicant has needed money because of job-related issues which was not needed in the past but also explained that he has taken cash over to Vietnam to give to the visa applicant during his visits over there. The review applicant also provided evidence of joint bank accounts in both the applicants’ names which have been used by both parties.

21. In regard to the other matters of a financial nature the review applicant provided evidence that there was no joint ownership of assets, or joint liabilities, or legal obligations owed to either party. The applicants have provided evidence that they have shared the cost of day-to-day household expenses over a significant period of time including when they were living together here in Australia and since the visa applicant has departed Australia.

22. The Tribunal has considered all this evidence and although it is mindful that the applicants did not have any joint property it is also the case that the review applicant has provided, taking into consideration his limited financial means, a reasonable amount of money to the visa applicant offshore and can demonstrate joint bank account activities. On that basis the Tribunal finds that the applicants have demonstrated that there are genuine financial aspects to their relationship which would indicate that they are in a genuine spousal relationship.

    ·Nature of the household – including any joint responsibility for care and support of children; parties’ living arrangements; and any sharing of housework.

23. In regard to the nature of the household the applicants confirmed that there is no joint responsibility for the care and support of children.

24. In regard to the other matters in relation to sharing a household the applicants have provided evidence that they lived together here in Australia from December 2013 until June 2017 when the visa applicant return to Vietnam. The applicants provided evidence that the Tribunal has considered and accepted that they have lived together genuinely as a couple during a period of time here in Australia. This evidence includes statements provided and evidence provided by various parties including the applicants land lord and other parties who have lived in the same house with the applicants when they were living together as a couple. It also includes evidence provided via statutory declarations by other parties including members of the applicants’ family.

25. The Tribunal asked the review applicant to clarify the issue of his residential address being inaccurately stated to the delegate during this time. The applicant explained that the address that he gave was the postal address of his sister during a time when he was changing addresses here in Melbourne and wanted to leave a permanent address where he could always be contacted. The Tribunal has considered this evidence and accepts this as credible.

26. When asked by the Tribunal as to why the review applicant has not moved back to Vietnam to be with the visa applicant the review applicant stated that it was a job requirement for him to remain here and that he was saving up money to buy a house and did not want to live in Vietnam but has been back to Vietnam and spent some significant time with the visa applicant and wanted to live here in Australia with him.

27. The Tribunal has considered this evidence outlining their living arrangements and finds that the evidence provided is consistent and credible. After consideration of this evidence the Tribunal finds that during that time the applicants lived together here in Australia does demonstrate that they can provide evidence of a shared household.

    ·Social aspects of the relationship – including whether parties represent themselves to other people as being in a de facto relationship with each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

28. The applicants have provided evidence from a number of parties via specific statements and declarations made and provided in both the delegates file and most recently in the AAT file, including from the applicants’ families that does demonstrate that they do represent themselves to other people as being in a genuine spousal relationship, and that that is the opinion of friends and acquaintances about the nature of the relationship, and that the applicants have also provided evidence about the joint social activities they shared together whilst living here in Melbourne and subsequent to that whilst the review applicant was visiting the visa applicant on holiday in Vietnam.

29. When asked by the Tribunal as to why the review applicant has not informed his parents in the United States of America that he is in this form of relationship with the visa applicant the review applicant and his legal advisor explained that he did not want to confront his parents with the nature of his relationship by phone and was waiting until he could see them in person to explain. The applicants could demonstrate that they have represented themselves to most of the other members of their families and their friendship group in regard to the nature of their relationship.

30. The Tribunal, after consideration of this evidence, finds that the applicants can demonstrate social aspects of their relationship which would seem to indicate that they are in a genuine spousal relationship.

    ·Nature of persons’ commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

31. The applicants have provided evidence in regards to the nature of the commitment that they have, the duration of the relationship, and in particular the length of time that they have lived together over that time and the degree of companionship and emotional support they draw from each other which the Tribunal, after consideration of the evidence, finds credible.

32. Therefore, the Tribunal finds that the applicants have demonstrated a level of commitment to each other which does indicate that they are in a genuine spousal relationship.

    ·Any other circumstances of the relationship.

33. The Tribunal has considered all the evidence provided by the applicants and finds that they do have a mutual commitment to a shared life to the exclusion of others; a genuine and continuing relationship; and that they intend to live together and not separately and apart on a permanent basis.

34. On the basis of the above the Tribunal is satisfied that the requirements of s.5CB(2) are met at the time the visa application was made and the time of this decision.

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

36. For these reasons the Tribunal is satisfied that the visa applicant meets the additional criteria prescribed in r.2.03A.

37. 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

38. 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

    ·r.2.03A

    Stephen Witts
    Member

    
    

    ATTACHMENT  -  Extract from Migration Regulations 1994

    1.09ADe facto partner and de facto relationship

    (1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.

    Note 1   See regulation 2.03A for the prescribed criteria applicable to de facto partners.

    Note 2   The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.

    Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).