Vu (Migration)

[2023] AATA 2881

Vu (Migration) [2023] AATA 2881 (29 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dinh Kiem Vu

REPRESENTATIVE:  Ms My Yen Tran

CASE NUMBER:  1837324

HOME AFFAIRS REFERENCE(S):          BCC2016/2720092

MEMBER:Edward Howard

DATE:29 August 2023

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) of Schedule 2 to the Regulations

·cl 820.221(1) of Schedule 2 to the Regulations

Statement made on 29 August 2023 at 10:03am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – limited documentary evidence provided to department, extensive documentary evidence and submissions provided to tribunal – validly married – financial, household and social aspects of relationship and nature of commitment – relationship ceased amicably – equal shared parental responsibilities for children confirmed by consent orders of local court – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 360(2)(a)
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 820.211, 820.221(1), (3)(b)(ii)

CASES
Ally v MIAC [2008] FCAFC 49
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
MIEA v Poche (1980) 4 ALD 139

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 applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 17 August 2016 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 of Schedule 2 to the Regulations.

4. The Tribunal has considered all of the evidence, which includes extensive documentary evidence and submissions provided to the Tribunal and is satisfied that a decision can be made without the need for a Hearing, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

5. The applicant was represented in relation to the review.

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

   Issues And Law

7. There is a two-stage process for onshore Partner visas. A visa applicant must first hold a provisional visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a permanent visa. The grant of a permanent visa would generally depend on whether the relationship has continued for a period of at least two years. In this matter, the Tribunal is considering the first, temporary stage.

8. Where the Tribunal is considering a criterion that requires the definition of spouse or de facto partner to be met at the time of the visa application, the information supplied in relation to the reg 1.15A(3) matters may relate to circumstances after the time of application. In forming a view of the relationship at the time of application, the Tribunal must consider all relevant evidence, which may include evidence of events after the date of application insofar as it assists in the task of determining whether the visa applicant and the sponsor were in a partner relationship at the time of the application. Evidence of events after 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.[1] The Tribunal observes this to be a matter where the visa applicant submitted limited documentary evidence in support of his visa application to the Department of Home Affairs and then furnished the Tribunal with further evidence that was unavailable to the primary decision maker.

   [1] Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139 at [24] per Deane J which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time; and see also Bretag v IRT [1991] FCA 582 at [13]–[15].

9. The issue in the present case is whether at the time of the visa application and the time of this decision, the parties satisfy the criteria under cl.820.211 and cl.820.221.

   Whether the parties are in a spouse or de facto relationship

10. 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.

11. ‘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?

12. 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?

    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.

13. The evidence of the parties is that they first met in January 2016 and committed to a shared life together in June 2016. The parties were married on 13 August 2016 and commenced living together at a residence in Ashcroft, New South Wales. The parties remained living together as a married couple until February 2022, when the marriage broke down.  The parties have been separated since that time.

14. The parties have provided evidence to the Tribunal of the financial aspects of the relationship, including the bank statements from their joint ANZ bank account. The statements show evidence of the plaintiffs pooling their financial resources and paying their regular household and other expenses.

15. The Tribunal accepts the evidence of the visa applicant that despite the fact the parties did not own real estate or major assets, they did each contribute to the financial relationship. This included the regular payment of their household expenses. The parties cohabited for approximately five and a half years and the financial relationship existed continuously during that time.

16. The Tribunal finds that the parties had joint liabilities and obligations in relation to their residential premises, that they pooled their financial resources and that they shared day-to-day household expenses. The Tribunal weighs the financial aspects of the relationship in favour of the visa applicant.

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

17. The parties were married in August 2016 and commenced cohabiting together at that time. The parties lived together continuously for five and a half years until the breakdown of the relationship in February 2022.

18. The parties have two young children, their first child was born in 2019 and the second child in 2021. Whilst the relationship continued, they had joint responsibility for the care and support of their children. As a result of the relationship breakdown, Consent Orders were subsequently finalised in the Fairfield Focal Court pursuant to the Family Law Act 1975 (Cth), regarding their separation and time spent arrangements for their children. These Orders confirm the shared, ongoing responsibility for the care and support of their children.

19. Statements have been provided by the sponsor’s sister and mother concerning the relationship of the sponsor and visa applicant. Their evidence is consistent in relation to the deterioration of the relationship following the birth of the couple’s second child. It is clear from the evidence of the sponsor’s sister and mother that they each continue to have a good relationship with the visa applicant, despite his separation from the sponsor. Additionally, they refer to the very close relationship that the visa applicant has with both of his children.

20. The evidence confirms that the parties have reached a amicable separation and agreement, as reflected in the Consent Orders, concerning not only their financial and property matters but also the care of the children.

21. The Tribunal is satisfied that the parties’ household and living arrangements were consistent with that of a married couple in a genuine relationship. The parties also share the joint responsibility for the care and support of their children, born in 2019 and 2021. Based upon the evidence received, the Tribunal weighs the household aspects in favour of the visa applicant.

    Social aspects of the relationship – including whether parties represent themselves to other people as being married to 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.

22. The parties have provided extensive evidence supporting their claim of being in a genuine relationship. The evidence demonstrates the clear recognition by family, friends and acquaintances, of the parties as a genuine couple over a period of more than seven years.

23. The Tribunal places significant weight upon the statements provided in support by the sponsor’s sister and mother, both of whom attest to the good ongoing relationship between the parties and their families, as well as the strong relationship between the visa applicant and his children.

24. The parties also provided extensive photographic evidence, including of their wedding and social interaction and other activities, including with family members and friends, both as a couple and in the presence of their children.

25. The Tribunal is satisfied on the evidence that the parties represented themselves to other people as being in a genuine married relationship, that they held the favourable opinion of family, friends and acquaintances about the nature of their relationship and that they regularly planned and undertook joint social activities. The Tribunal weighs the social aspects of the relationship in favour of the visa applicant.

    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.

26. The evidence of the parties is that they first met in January 2016, committed to a shared life together in June 2016 and were married on 13 August 2016.  The parties remained living together as a married couple until February 2022, when the marriage broke down. The parties have been separated since that time.

27. The parties have two young children, born in 2019 and 2021. Whilst the relationship continued, they had joint responsibility for the care and support of their children. As a result of the relationship breakdown, Consent Orders were subsequently finalised in the Fairfield Focal Court pursuant to the Family Law Act 1975 (Cth), regarding their separation and time spent arrangements for their children. These Orders confirm the shared, ongoing responsibility for the care and support of their children.

28. Statements have been provided by the sponsor’s sister and mother concerning the relationship of the sponsor and visa applicant. Their evidence is consistent in relation to the deterioration of the relationship following the birth of the second child. The sponsors sister and mother gave persuasive evidence, especially in relation to the strong bond between the visa applicant and his children.

29. The evidence of the parties is that the marriage relationship ended in about February 2022 and the parties have lived separately since that time.

30. Having considered all the evidence, the Tribunal is satisfied that at the time the visa application was made, the parties satisfied the definition of “Spouse” as defined in section 5F of the Act; in that they were validly married; had a mutual commitment to a shared life as a married couple to the exclusion of others; that the relationship between them was genuine and continuing; and that they lived together. The Tribunal is therefore satisfied that the parties relationship fulfilled the criteria contained in Cl.820.211(2) of the Regulations at the time the visa application was made.

31. Pursuant to Cl.820.221(1), in order to be eligible for the grant of a Subclass 820(UK) visa, the applicant must also continue to meet the requirements of Cl.820.211(2) at the time of this decision.

32. Having regard to the evidence before the Tribunal of the separation of the parties, this threshold is, prima facie, unable to be satisfied. However, the parties have two children born in Australia. Clause 820.221 can alternatively be met if, relevantly, the requirements of cl 820.221(3)(b)(ii) are met.

33. Clause 820.221(3)(b)(ii) of the Regulations states as follows:

    (3)  An applicant meets the requirements of this subclause if:

    (a)  the applicant would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and

    (b) either or both of the following circumstances applies:

    (ii) the applicant:

    (A)  has custody or joint custody of, or access to…

    at least one child in respect of whom the sponsoring partner:

    (C)  has been granted joint custody or access by a court…

34. Therefore, if the Tribunal is satisfied that the visa applicant would continue to meet the requirements of clause 820.211(2) except that the relationship has ceased and, if it is satisfied that the visa applicant has custody or joint custody of, or access to, at least one child in respect of whom the sponsoring partner has been granted joint custody or access by a Court, then the visa applicant will meet the requirements of clause 820.221 at the time of the decision.

35. The parties have provided a copy of the Consent Orders made in the Fairfield Focal Court pursuant to the Family Law Act 1975 (Cth). The Orders confirm that the visa applicant and sponsor will have equal shared parental responsibilities for making decisions about any major long-term issues regarding their children.

36. Whilst the children will live with the sponsor, the Orders confirm that the visa applicant is able to spend time with the children on Monday to Friday between 5pm – 10pm and from 2pm – 7pm each Saturday and Sunday. The children will also spend periods of time during the school holidays and Christmas holiday period with the sponsor.

37. The Orders further state that the sponsor will have sole responsibility to make decisions concerning medical treatment, education, schooling, tuition and extracurricular activities. However, there is a requirement for the sponsor to consult with the visa applicant in relation to these matters.

38. Having carefully considered all the evidence, the Tribunal finds that the visa applicant satisfies Clause 820.221(3)(b)(ii).

39. The Tribunal is therefore satisfied the visa applicant meets the criteria of cl 820.211(2) and cl 820.221(1).

40. 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.

    DECISION

41. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the visa applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·cl 820.211(2) of Schedule 2 to the Regulations

    ·cl 820.221(1)of Schedule 2 to the Regulations

    Edward Howard
    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).