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

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 applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. 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.

3. 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.

4. 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.

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

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 applicant and the sponsor are spouses for the purposes of the Act.

8. 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.

9. 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.

10. 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

11. 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.

12. 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

13. 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.

14. ‘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?

15. 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?

16. 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

17. Any joint ownership of real estate or other major assets, any joint liabilities, the extent of any pooling of financial resources, whether one person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day-to-day household expenses are relevant factors to consider when assessing the financial aspects of the relationship.

18. There is no evidence before the Tribunal that one person in the relationship owes any legal obligation in respect of the other. There is no evidence of joint ownership of real estate or other major assets. The applicant told the Tribunal hearing that he owns a house in Vietnam. He stated that he would consider selling the house in order to purchase property in Australia.

19. In independent and consistent evidence to the Tribunal, the parties told the hearing that the applicant pays for rent and utilities and the sponsor usually pays for groceries. The parties also stated that the applicant takes responsibility for decisions regarding larger household items.

20. The parties provided evidence of a joint bank account, with Centrelink payments to the sponsor deposited into this account. The applicant told the hearing that he initially had his wages deposited into the joint account but found that it was more financially efficient to have his own account in order to better save money to pay for the rent and other costs. He told the hearing that he found that when he put his money into the joint account the sponsor ‘might waste it’. The sponsor told the hearing it was ‘more convenient’ for the applicant to have a separate account and pay the rent and utilities invoices from the savings in this account.

21. The Tribunal notes the lack of evidence regarding the financial aspects of the relationship that was provided at the time of application and gives little weight to the lack of evidence. The Tribunal gives great weight the evidence provided in documentation and at the hearing and considers that the parties share financial responsibilities for the household pursuant to reg 1.15A(3)(a).

    The nature of the household

22. Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are relevant matters to be considered when assessing the nature of the household.

23. There is no evidence before the Tribunal that the parties have any children together. As mentioned above, the parties live with the applicant’s daughter and one of the daughters of the sponsor. The girls, both teenagers, share a bedroom and in independent and consistent evidence to the hearing the parties stated that the girls rarely argue.

24. The applicant told the hearing that the parties share housework and cooking, and his daughter also helps out. The sponsor told the hearing that she does most of the work in the kitchen and cleaning the house and sometimes the daughters help.

25. In a statutory declaration dated 7 March 2024, a friend of the parties Michael Le states that he often visits the parties and he describes their home as ‘a truly cosy home and family’.

26. The Tribunal notes the delegate’s concern about evidence provided regarding the parties’ household but gives some weight to this evidence. The Tribunal gives great weight to the evidence provided at the hearing regarding how the family, comprising two adults and two teenage girls, shares a two-bedroom apartment and it considers that the parties have established a household pursuant to reg 1.15A(3)(b).

    The social aspects of the relationship  

27. Whether the persons represent themselves to other people as being in a spousal relationship, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.

28. The parties provided a number of photographs, some of which were labelled and dated, of the parties socialising with friends and family.

29. In independent and consistent evidence to the Tribunal the parties told the hearing that they rarely socialise, but sometimes share a meal with friends at their home or at friends’ homes.

30. The sponsor told the hearing she has only two friends. The applicant stated that the sponsor had only two friends and he confirmed their names.

31. In a statutory declaration dated 11 March 2024, a friend of the parties Hang Thi Thu Pham states that the parties used to rent a property from her mother and now she sees the parties regularly for dinner. The applicant also told the hearing that the parties had previously rented a property from ‘Hang’.

32. In a statutory declaration dated 12 February 2020, a friend of the applicant Luong Van Nguyen states that he met the applicant in 2010 before he was divorced. Mr Nguyen states that the applicant was left to raise his daughter on his own and his now in a happy relationship with the sponsor.

33. In his statutory declaration mentioned above, Michael Le states that he often sees the parties at the market and he visits their home.

34. The Tribunal notes the lack of evidence regarding the social aspects provided at the time of application and gives some weight to the lack of evidence. The Tribunal notes the evidence provided by friends in the statutory declarations and at the hearing and, although the evidence is not detailed, gives it some weight as evidence that friends and acquaintances see the parties as in a genuine spousal relationship as required by reg 1.15A(3)(c).

    The nature of the persons’ commitment to each other

35. The duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the persons draw from each other, and whether the persons see their relationship as long-term are all aspects to be considered in determining the nature of the persons’ commitment to each other.

36. The parties were married on 15 June 2019, the same day that the application for the partner visa was lodged. The Tribunal is concerned at the rapid development of the relationship; however, notes that at the time of this decision the parties have been married for almost five years and gives some weight to this length of time.

37. In her statutory declaration mentioned above, Thi Kim Diep Vu states that she often hears the applicant ‘talking [about] and praising his family’. In her statutory declaration mentioned above, Hang Thi Thu Pham states that the parties care for each other and are ‘always together’. In his statutory declaration mentioned above, Luong Van Nguyen sates that the parties are happy together. And in his statutory declaration mentioned above, Michael Le states that the parties demonstrate affection for each other in front of friends and in public, and he states that they are in a loving relationship.

38. The Tribunal asked the parties why the development of their relationship and marriage was rapid. The applicant told the hearing that the sponsor wanted him to lodge the partner visa application while living in Australia because she was not keen to wait for ‘the offshore process’. The sponsor told the hearing that the parties did not want to live far from each other and she wanted him to be in Australia with her.

39. In independent and consistent statements to the Tribunal, the parties told the hearing that they would like to start a small business in the food industry, perhaps selling food in an Asian grocery shop or running a convenience store.

40. 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

41. As stated above, the Tribunal is satisfied that the parties are validly married, as required by s 5F(2)(a) of the Act.

42. 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.

43. 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.

44. 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.

45. 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.

46. 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.

47. 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.

48. Therefore the applicant meets cls 820.211(2)(a) and 820.221.

49. 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 820 visa.

    Secondary applicant

50. In circumstances where members of a family unit make a combined application, only one member of the family needs to satisfy the primary criteria. In the delegate’s decision the delegate found that the secondary applicant also did not meet the requirements of cl 820.211(2)(a).

51. Given the findings above of the Tribunal in relation to the primary visa applicant, it is appropriate for the Tribunal to remit the visa application of the secondary visa applicant to the Minister for reconsideration on the basis of the direction given for the primary visa applicant so the secondary visa application can be assessed against the secondary criteria.

    DECISION

52. 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

    Cheryl Cartwright
    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).