Vo (Migration) - [2024] AATA 678

Vo (Migration) [2024] AATA 678 (28 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Huynh Anh Vo
Miss Huynh Anh Thu Vo
CASE NUMBER:  2102014
HOME AFFAIRS REFERENCE(S):          BCC2019/3050195
MEMBER:Cheryl Cartwright
DATE:28 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211(2)(a) of Schedule 2 to the Regulations
·cl 820.221 of Schedule 2 to the Regulations]
·the secondary applicant meets cls 820.211(2)(a) and 820.221

Statement made on 28 March 2024 at 12:38pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – joint bank account – limited evidence of social activities – lengthy marriage – witness statements of a loving relationship – plans to start a joint business – decision under review remitted
LEGISLATION
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
Jayasinghe v MIMA [2006] FCA 1700
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 applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant (the applicant) applied for the visa on 15 June 2019 on the basis of 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2)(a) because there was insufficient information provided to demonstrate that the applicant is the spouse or de facto partner of the sponsor as defined under section 5F and 5CB of the Migration Act.
The applicants appeared before the Tribunal on 27 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Huynh Anh Thu VO. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicants were represented in relation to the review.
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 the applicant and the sponsor are spouses for the purposes of the Act.
As Middleton J stated in Jayasinghe v MIMA [2006] FCA 1700 at [35]:
Evidence of events subsequent to the visa application is relevant if it ‘tends logically to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Vo (Migration)

Details

AGLC: Vo (Migration) [2024] AATA 678
Case: [2024] AATA 678
Decision Date: 28 March 2024

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, subclass 820, made by the applicant and their daughter as a secondary applicant. The sponsor was an Australian citizen. The core dispute revolved around whether the applicant and sponsor were in a genuine and continuing spouse relationship, as required by the Migration Regulations 1994. The Tribunal was tasked with determining if the parties met the criteria for a married relationship under section 5F of the Act, considering various aspects of their relationship.

The legal issues before the Tribunal were whether the parties were validly married, and if so, whether they met the other requirements for a spouse relationship as defined by the Act and Regulation 1.15A(3). This involved assessing the financial aspects, the nature of their household, the social aspects of their relationship, and the nature of their commitment to each other, both at the time of the visa application and at the time of the decision. The Tribunal also considered whether the parties had a mutual commitment to a shared life as a married couple to the exclusion of all others, and whether their relationship was genuine and continuing, and if they lived together or not separately and apart on a permanent basis.

The Tribunal found that the parties were validly married and, on balance, satisfied the requirements of section 5F(2) of the Act at both relevant times. This included having a mutual commitment to a shared life, a genuine and continuing relationship, and living together as much as possible. The Tribunal also considered the evidence of their living arrangements, including shared accommodation with their daughters, and their future plans, such as starting a joint business, which indicated a long-term commitment. Despite some initial lack of evidence regarding commitment at the time of application, the Tribunal gave weight to the evidence presented at the hearing and subsequent events.

Ultimately, the Tribunal remitted the applications for Partner (Temporary) (Class UK) visas, subclass 820, with a direction that the first applicant met the relevant criteria, including clauses 820.211(2)(a) and 820.221 of Schedule 2 to the Regulations, and that the secondary applicant also met these criteria.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In the circumstances of this case, the Tribunal considers that it is appropriate to make findings about cl 820.221 (a time of decision criterion) as well.Background The applicant is divorced with one daughter, aged 16, who is the secondary applicant in this review and the sponsor is divorced with three children. The applicant’s daughter and one of the sponsor’s daughters, aged 18, live with the parties in a two-bedroom apartment in Noble Park, Victoria. The parties met in 2017 when the applicant was visiting Australia. They remained in touch and met again when the sponsor visited Vietnam in 2018. The applicant came to Australia on 2 June 2019 and the parties married on 15 June 2019. The application for the partner visa (subclass 820/801) was lodged on 15 June 2019.Whether the parties are in a spouse or de facto relationship 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. A copy of her passport is on file. ‘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) is effectively a question 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 parties were married in Abbotsford in Melbourne Australia on 15 June 2019. A copy of the marriage certificate is on file. 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).Are the other requirements for a spouse relationship met? Regulation 1.15A(3) provides relevant factors for determining whether the spousal relationship exists. These factors are (a) the financial aspects of the relationship; (b) the nature of the household; (c) the social aspects of the relationship; and (d) the nature of the persons’ commitment to each other. In considering these issues, the Tribunal has had regard to all of the documents on the Department’s file and on the Tribunal’s file. The financial aspects of the relationship

Evidence

Evidence Before The Court

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 the applicant and the sponsor are spouses for the purposes of the Act. As Middleton J stated in Jayasinghe v MIMA [2006] FCA 1700 at [35]:Evidence of events subsequent to the visa application is relevant if it ‘tends logically to show the existence or non-existence of facts relevant to the issue to be determined’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. The Tribunal must consider all relevant evidence, which may include evidence of events subsequent to the date of application insofar as it assists in the task of determining whether the appellant and the sponsor were in a marriage relationship at the time of the application. The question of whether particular evidence is relevant and the weight it is to be given is clearly a matter for the Tribunal. In deciding this matter, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application and the date of the delegate’s decision. In the circumstances of this case, the Tribunal considers that it is appropriate to make findings about cl 820.221 (a time of decision criterion) as well.Background The applicant is divorced with one daughter, aged 16, who is the secondary applicant in this review and the sponsor is divorced with three children. The applicant’s daughter and one of the sponsor’s daughters, aged 18, live with the parties in a two-bedroom apartment in Noble Park, Victoria. The parties met in 2017 when the applicant was visiting Australia. They remained in touch and met again when the sponsor visited Vietnam in 2018. The applicant came to Australia on 2 June 2019 and the parties married on 15 June 2019. The application for the partner visa (subclass 820/801) was lodged on 15 June 2019.Whether the parties are in a spouse or de facto relationship 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. A copy of her passport is on file. ‘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) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.Are the parties validly married?

Decision

Reasons for decision

The Tribunal notes the lack of evidence regarding the parties’ commitment to each other provided at the time of application and gives some weight to the lack of evidence. The Tribunal notes the evidence provided at the hearing and considers that the parties live as a family with two teenage girls and plan a future together. The Tribunal gives some weight to the parties’ plans for the future and considers that they see the relationship as long term as required by reg 1.15A(3)(d).Conclusion As stated above, the Tribunal is satisfied that the parties are validly married, as required by s 5F(2)(a) of the Act. After considering all the evidence before it and for the reasons given with respect to the reg 1.15A(3) matters, the Tribunal is satisfied that, on balance, both at the time of application on 15 June 2019 and at the time of this decision, the applicant and the sponsor:·had and have a mutual commitment to a shared life as wife and husband to the exclusion of all others, as required by s 5F(2)(b) of the Act;·had and have a genuine and continuing relationship, as required by s 5F(2)(c) of the Act; and·lived and live together as much as possible as required by s 5F(2)(d)(i) of the Act. However, the spouse requirement in cl 820.211(2)(a)(i) is not the only requirement in cl 820.211(2) which must be satisfied at the time of application. The sponsorship requirements in cl 820.211(2)(a)(ii) and cl 820.211(2)(c) must also be satisfied, and, if the applicant was not the holder of a substantive visa at the time of application, then the requirements in cl 820.211(2)(d) must also be satisfied. There is no evidence before the Tribunal that the circumstances outlined in cl 820.211(2B) apply so the Tribunal finds that the sponsor is not prohibited by that subclause from being a sponsoring partner. Accordingly, the Tribunal finds that cl 820.211(2)(a)(ii) is met. A copy of the Form 40SP–Sponsorship for a partner to migrate to Australia is on the Department’s file. From the evidence before it, the Tribunal is satisfied that the applicant is sponsored by the sponsor and that cl 820.211(2)(c)(i) is met. The applicant’s movement records evidence that he held a substantive visa upon applying for the partner visa (subclass 820/801) on 15 June 2019. As he held a substantive visa at the time of application, the further requirements in cl 820.211(2)(d) need not be met. The Tribunal finds that the applicant meets the time of application requirements in cl 820.211(2). The applicant’s movement records evidence that he is not the holder of a transit visa (771) and so meets the requirements of cl 820.211(1)(a). As the applicant meets the requirements of cl 820.211(2), he also meets cl 820.211(1)(b). As both cl 820.211(1)(a) and (b) are met, cl 820.211(1) is met. 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 at the time of this decision. Therefore the applicant meets cls 820.211(2)(a) and 820.221.

Ratio Decidendi

Legal Principle Established

The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:·cl 820.211(2)(a) of Schedule 2 to the Regulations·cl 820.221 of Schedule 2 to the Regulations·the secondary applicant meets cls 820.211(2)(a) and 820.221Cheryl CartwrightMemberATTACHMENT - Extract from Migration Regulations 19941.15A 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).