VU (Migration)

[2021] AATA 1443

VU (Migration) [2021] AATA 1443 (24 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs THI THANH HUONG VU

VISA APPLICANTS:  Mr DINH TUAN NGUYEN
Miss TUYET NGAN NGUYEN

CASE NUMBER:  1802288

DIBP REFERENCE(S):  BCC2017/1061852

MEMBER:Rachel Westaway

DATE:24 March 2021

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(2) of Schedule 2 to the Regulations

·cl.309.221 of Schedule 2 to the Regulations

and the secondary visa applicant meets

·cl.309.311 and cl.309.321(b)(i) of Schedule 2 to the Regulations

Statement made on 24 March 2021 at 1:30pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – validly married in home country – documentary and consistent oral evidence – financial, household and social aspects of relationship limited while visa applicant living in home country – nature of commitment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A, Schedule 2, cls 309.211, 309.221, 309.311, 309.321

CASE
He v MIBP [2017] FCAFC 206

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 8 January 2018 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant (the visa applicant) applied for the visa on 17 March 2017 on the basis of their relationship with their 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 the delegate was not satisfied that the circumstances of the parties’ relationship sufficiently met the legal requirements that are prescribed in regulation 1.15A.

4. The applicant lodged an application to the Administrative Appeals Tribunal on 30 January 2018 to review the delegate’s decision. Along with their application the applicant submitted a copy of the delegate’s decision record and notification of decision letter.

5. The review applicant appeared before the Tribunal on 21 September 2020 to give evidence and present arguments. Due to the current COVID-19 pandemic the hearing was held using videoconference facilitated by the Microsoft Teams program. The Tribunal also received oral evidence from Dinh Tuan Nguyen. The hearing was held with the assistance of an interpreter in the English and Vietnamese languages.

6. The review applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the Tribunal is satisfied that circumstances of the relationship set out in regulation 1.15, namely; the financial, social and household aspects of the relationship and the nature of the parties’ commitment to each other, demonstrate that the parties are in a genuine and continuing marital relationship.

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

   Whether the parties are in a spouse or de facto relationship

9. 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 spouse of the review applicant who is Australian citizen, evidenced by the provision of a valid Australian passport and Australian citizenship certificate to the department.

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.

11. The delegate refused the visa application having not been satisfied that the applicant meets subclause 309.211(2) namely that they are the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. The delegate referred to insufficient evidence available to support the claim that the relationship is a genuine and continuing spousal relationship. Consequently, the delegate found that the secondary applicants did not meet the secondary criteria being clause 309.321.

    Are the parties validly married?

12. The applicants submitted a valid marriage certificate to the Department. The certificate, issued by the Socialist Republic of Vietnam, states that the parties were married in Hai Phong on 31 December 2015[1]. 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).

    [1] Department file BCC2017/1061852, ff. 66-7

    Whether the parties are in a spouse or de facto relationship

13. The Tribunal considered the evidence against the r.1.15A(3) factors.

14. The applicant submitted the following material to the department in support of the application:

    a)Vietnamese identity card of Quach Thi Thuy valid until 23 August 2017 and English translation of document[2]

    [2] Ibid, ff. 137-8

    b)Letter from the sponsor to the department detailing the relationship dated 4 April 2017

    c)Application for certification of the visa applicant’s daughter’s (the secondary visa applicant) schooling dated 20 March 2017[3]

    [3] Ibid, f. 133

    d)Marriage Statement and translation, made by the visa applicant on 14 February 2017[4]

    [4] Ibid, f. 106

    e)Divorce Statement and translation, between the visa applicant and his ex-wife dated 14 February 2017[5]

    [5] Ibid, ff. 102-3

    f)Birth certificate and translation, of the visa applicant issued on 10 February 2017[6]

    [6] Ibid, ff. 99-100

    g)Vietnamese identity card of Nguyen Dinh Tuan valid until 30 October 2030 and English translation of document[7]

    [7] Ibid, ff. 97-8

    h)Biodata page of Vietnamese passport of visa applicant Nguyen Dinh Tuan valid until 20 November 2025[8] and copy of various entry stamps and Japanese visa[9]

    [8] Ibid, f. 95

    [9] Ibid, ff. 93-4

    i)Family Household Book and English translation of the household of Nguyen Dinh Tuan dated 22 April 2014[10]

    [10] Ibid, ff. 86-9

    j)Curriculum Vitae of Nguyen Dinh Tuan issued on 30 October 2015[11]

    [11] Ibid, ff. 77-81

    k)Judicial Record from the Department of Justice of Hai Phong City dated 7 April 2016 for Nguyen Dinh Tuan[12]

    [12] Ibid, ff. 73-4

    l)Decision recognizing divorcement made by the People’s Court of Ngo Quyen District of Hai Phong City dated 17 July 2013[13]

    [13] Ibid, ff. 69-72

    m)Marriage certificate for the marriage on Nguyen Dinh Tuan and Vu Thi Thanh Huong in Hai Phong on 31 December 2015 and English translation[14]

    n)Birth certificate of sponsor, Vu Thi Thanh Huong issued by the Vietnamese Justice Division[15]

    o)Australian passport of sponsor, Vu Thi Thanh Huong, valid until 5 February 2020[16]

    p)Divorce Order issued by the Federal Circuit Court of Australia for the marriage of the sponsor and her former spouse on 25 November 2014[17]

    q)Certificate of Australian Citizenship issued to the sponsor on 15 April 1997[18]

    r)National Police Certificate issued by the Australian Federal Police for the sponsor on 25 November 2016[19]

    s)Vietnamese birth certificate of the visa applicant’s daughter and secondary visa applicant, Nguyen Tuyet Ngan issued on 10 February 2017 and English translation[20]

    t)Biodata page of Vietnamese passport of Nguyen Tuyet Ngan valid until 3 April 2020 plus copies of Japanese visa, entry and exit stamps contained within the document[21]

    u)Family Household Book and English translation of the household of Nguyen Thanh Van dated 30 November 1992[22]

    v)Letter of commitment to allow child to live permanently in Australia with the father, signed by Quach Thi Thuy in Hai Phong, Vietnam on 14 February 2017[23]

    [14] Ibid, ff. 67-8

    [15] Ibid, ff. 65-6

    [16] Ibid, f. 64

    [17] Ibid, f. 63

    [18] Ibid, f. 62

    [19] Ibid, f. 61

    [20] Ibid, ff. 59-60

    [21] Ibid, ff. 54-58

    [22] Ibid, ff. 41-6

    [23] Ibid, ff. 38-40

15. The applicant submitted the following material to the Tribunal in support of the review application:

    a)Copies of postal correspondence between sponsor and visa applicant[24]

    [24] Tribunal file, Doc ID: 6994759

    b)Several money transfer and post receipts for gifts and money sent from the sponsor and the visa applicant[25]

    [25] Tribunal file, Doc ID: 6994760

    c)Several mobile phone bills issued by Vodafone to the sponsor for the following periods with instances of the review applicant calling the visa applicant highlighted[26]

    [26] Tribunal file, Doc ID: 6994761, 6994769, 6994773, 7633424 and 7633428

    a.25 January 2015 until 24 May 2018

    b.25 June until 24 December 2018

    c.25 March until 24 April 2019

    d.25 October 2019 until 24 August 2020

    d)Greeting cards and postal correspondence between the sponsor and visa applicant[27]

    [27] Tribunal file, Doc ID: 6994762, 6994767, 6994770, 6994781 and 7633429

    e)Photographs of the sponsor and visa applicant, posing alone and with other people[28]

    [28] Tribunal file, Doc ID: 6994763, 6994768, 6994771, 6994776 and 6994782

    f)Financial records issued to the visa applicant by a Vietnamese bank for the periods of February 2015, between April and July 2015, November 2015 and between January 2016 and December 2017[29]

    [29] Tribunal file, Doc ID: 6994764 and 6994777

    g)Screenshots of text messages exchanged between the sponsor and visa applicant including photos sent between the parties[30]

    [30] Tribunal file, Doc ID: 6994765, 6994775 and 6994778

    h)Several mobile phone bills issued by Vodafone to the sponsor for the periods of 25 May until 24 June 2018 and 25 December 2019 until 24 October 2019, with instances of the review applicant calling the visa applicant highlighted[31]

    [31] Tribunal file, Doc ID: 6994766

    i)Boarding passes issued in the names of the sponsor and visa applicant for various flights[32]

    [32] Tribunal file, Doc ID: 6994780

    j)Hotel receipts in the name of the sponsor and visa applicant for the following[33]:

    [33] Tribunal file, Doc ID: 6994774

    a.Silverland Jolie Hotel in Ho Chi Minh City staying from 13 July until 17 July 2018

    b.Unnamed hotel in Vietnam staying from 19 May until 22 May 2018

    c.Golden Lake Hotel in Hanoi staying from 8 November until 10 November 2015 and from 20 January until 21 January

    k)International money transfer receipt issued by Hai Ha Money Transfer from the sponsor to the visa applicant to the value of $523.50 on 29 January 2020[34]

    [34] Tribunal file, Doc ID: 7633425

    l)Payment orders issued by National Citizen Bank in Vietnam ordered by the visa applicant to the sponsor as the beneficiary on 18 January 2018, 3 May 2018, 22 July 2019, 1 October 2019[35]

    [35] Ibid.

    m)Bill of shipment issued by Vietnam Post for a parcel sent from the visa applicant to the sponsor on 2 October 2018[36]

    [36] Ibid.

    n)Statutory declaration in support of the relationship made by the sponsor’s daughter, Hoang Tuyet Nhi on 7 September 2020[37]

    [37] Tribunal file, Doc ID: 7633427

    o)Statutory declaration in support of the relationship made by Nguyen Hai Ninh on 16 September 2020[38]

    p)Statutory declaration made by the sponsor, Thi Thanh Huong Vu, on 15 September 2020[39]

    q)Statutory declaration made on department form 888 in support of the relationship by Duc Minh Nguyen declared on 16 September 2020[40]

    r)Original and translated statutory declaration made in support of the relationship by Nguyen Dinh Tu declared on 12 September 2020[41]

    s)Original and translated statutory declaration made by visa applicant, Nguyen Dinh Tuan, declared on 16 September 2020[42]

    a.

    [38] Tribunal file, Doc ID: 7663673

    [39] Tribunal file, Doc ID: 7663674

    [40] Tribunal file, Doc ID: 7663675

    [41] Tribunal file, Doc ID: 7663676

    [42] Tribunal file, Doc ID: 7663677

    CLAIMS AND FINDINGS

16. Over the course of the hearing the Tribunal heard consistent oral evidence from the sponsor and the visa applicant about the nature of their relationship.

17. The oral evidence in addition to the new evidence supplied prior to hearing and the applicants’ consistent and logical explanations pertaining to the concerns expressed by the delegate demonstrated that Ms Vu is the spouse of Mr Nguyen.

18. The applicants were able to provide consistent knowledge about when and how they met. They explained that the visa applicant owned his own tattoo parlour. The sponsor was able to confirm her knowledge of his business and employees and change of location and amount of daily customers. Her explanation of how they met when the sponsor received her first tattoo was sufficiently detailed to satisfy the tribunal that the couple met and have a genuine interest each other and the applicant’s business. They demonstrated their interest in tattoos and were able to describe each other’s and the location of them.

19. Mr Nguyen was consistent and clear in his discussions and details about Ms Vu’s three children and their numerous trips to Vietnam where they met him. He provided consistent information stating the children stay with their grandparents and not him. Mr Nguyen spoke of his regular visits to his in-laws’ home and knew of their recent separation. Whilst he was not able to explain the detail of the separation, he provided sufficient information to indicate his regular visits to his in-law’s home.

20. Mr Nguyen and Ms Vu gave logical explanations as to why they did not have an engagement or wedding celebration. They explained that both had been married before and Mr Nguyen’s family were not supportive of the relationship given her previous relationships. Both gave consistent information about Mr Nguyen’s former wife and why the relationship and marriage ended.

21. The couple speak daily on Facetime and provided evidence of their calls.

22. Ms Vu explained that she stays at her family home when she returns to Vietnam and Mr Nguyen stays with her. She stated that they will take short vacations to hotels and they provided evidence of this.

23. Mr Nguyen and Ms Vu explained the reason why the delegate did not receive a clear explanation of who Ms Vu’s children’s father was. The issue was explored at hearing and the couple explained that Ms Vu was married but had her three children to three different partners who were not the applicant’s husband.

24. Ms Vu provided evidence of her seven trips to Vietnam including the one in which she met her husband.

25. Money transfer receipts were provided showing the sponsor sends money occasionally to her in-laws and the visa applicant occasionally sends money to the sponsor.

26. The couple spoke of their future and both provided a consistent response about what Mr Nguyen would do if he came to Australia. They explained he would work in his in-law’s tobacco shop and learn English and then set up his own tattoo parlour.

27. The couple provided recent statutory declarations from friends and children confirming their knowledge of the relationship.

28. The Tribunal has considered the consistent, detailed and persuasive oral evidence provided by Mrs Vu and Mr Nguyen at hearing and also the statutory declarations from children and friends, receipts of travel and photographs, receipts of money transfers and evidence of regular communication.

29. Regarding the financial aspects of the parties’ relationship, there is no evidence that the parties have any joint ownership of real estate or other major assets or joint labilities or pooling of financial resources, especially in relation to major financial commitments. The parties are however knowledgeable about each other’s financial situation and have provided evidences of financial support from the sponsor to the applicant. The Tribunal accepts that the parties share their day-to-day household expenses.

30. Regarding the parties’ household, the sponsor lives in Australia and the applicant in Vietnam, however they have provided significant evidence of the sponsor’s trips to Vietnam where they lived together and the sponsor has demonstrated sufficient knowledge of his in-laws to indicate he attends their home regularly, the family home of his wife.  The Tribunal accepts that the parties have a shared household to the degree that it is possible given their temporary separation and the care they are required to give their respective children. 

31. Regarding the social aspects of the parties’ relationship, the parties’ have made numerous trips together and the applicant is known to the sponsor’s family.  The Tribunal accepts that the parties represent themselves and are accepted by others as spousal partners. The Tribunal accepts that the parties plan and undertake joint social activities together.

32. Regarding the party’s commitment to their relationship, the parties have demonstrated a strong knowledge of each other’s interests and business ventures and personal history. The Tribunal accepts that the parties provide each other with companionship and emotional support.  The Tribunal accepts that the parties see their relationship as long-term. 

33. I find the evidence persuasive and they provided logical explanations addressing the concerns of the delegate. The Tribunal acknowledges that the applicant and sponsor live apart when Ms Vu is not in Vietnam and are not financially equipped to accumulate assets and this has been taken into consideration. The Tribunal finds that the evidence supports that the nature of their household, social and financial aspects of their relationship and nature of their commitment to each other, and other circumstances of their relationship demonstrate that they have a genuine and continuing mutual commitment to each other to the exclusion of all others: r.1.15A(3). They meet all the requirements in s.5F(2)(b), (c), and (d) of the Act.

34. The Tribunal finds that Mrs Nguyen and Mr Vu were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a) of the Act.  The couple have provided a marriage certificate for the marriage on Nguyen Dinh Tuan and Vu Thi Thanh Huong in Hai Phong on 31 December 2015 and an English translation.

1. Having regard to all of the evidence, the Tribunal concludes as follows:

   • The parties are married to each other under a marriage that is valid for the purposes of the Act;
   • they are not living separately and apart on a permanent basis;
   • they have a mutual commitment to a shared life together to the exclusion of others; and that the relationship is genuine and continuing

2. The secondary visa applicant was born on [date] and the visa application was made on 17 March 2017. At the time of application, the secondary visa applicant had not turned 18. At the time of decision, the secondary visa applicant continues to be under 18. Therefore, it is accepted that the secondary visa applicant is a dependent child of the visa applicant, as the family head. As the secondary visa applicant made a combined application with the visa applicant who satisfies the primary criteria in cl.309.211(2) and cl.309.221 of Schedule 2 to the Regulations. It follows that, the secondary visa applicant meets cl.309.311 and cl.309.321(b)(i) of Schedule 2 to the Regulations.

3. 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.

4. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

   ·cl.309.211(2) of Schedule 2 to the Regulations

   ·cl.309.221 of Schedule 2 to the Regulations

   ·the secondary visa applicant meets cl.309.311 and cl.309.321(b)(i) of Schedule 2 to the Regulations

   Rachel Westaway
   Senior 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).