Waring (Migration)

[2019] AATA 3994

Waring (Migration) [2019] AATA 3994 (20 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Frederick Kenneth Waring

VISA APPLICANTS:  Ms Thi Kim Ly Tran
Ms Thuy Yen Vi Nguyen
Ms Tran To Nga NGUYEN

CASE NUMBER:  1831221

DIBP REFERENCE(S):  BCC2018/2503726 OSF2016/039651

MEMBER:P. Maishman

DATE:20 August 2019

PLACE OF DECISION:  Perth

DECISION: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 of Schedule 2 to the Regulations

·cl.309.221 of Schedule 2 to the Regulations

Statement made on 20 August 2019 at 11:10am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – credible witnesses – living arrangements – commitment to each other – 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

CASES
He v MIBP [2017] FCAFC 206

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 28 August 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 30 April 2018 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(2) because the delegate was not satisfied that the applicant was the spouse of an Australian citizen; an Australian permanent resident; or an eligible New Zealand citizen.

4. The review applicant appeared before the Tribunal on 12 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the first named applicant, Mrs Thi Kim Ly Tran; the review applicant’s sister, Ms Susan Baker; and friends Mr Jeff Gregory and Ms Thi Thu Huyen Ho.  

5. The Tribunal was assisted by an interpreter of the Vietnamese and English languages.

6. The review applicant was represented in relation to the review by his 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 Tribunal had before it a copy of the Department’s file containing the visa application, the sponsorship form and evidence provided by the visa applicant to the Department.

9. The review applicant provided a copy of the delegate’s decision with his application for review. The delegate’s decision summarises the visa application history. The parties claim to have met each other in Australia in April 2016 and become engaged in June 2016. The visa applicant applied for a prospective marriage visa on 26 October 2016 and the delegate refused that application on 3 August 2017. The review applicant applied to the Tribunal on 21 August 2017 for review of the delegate’s decision. Evidence provided by the applicant, in the form of a certified true copy of their marriage certificate, showed the review applicant and the visa applicant were married in Vietnam on 25 October 2017. The Tribunal, as constituted, was satisfied that the marriage was a valid marriage for the purposes of the Act and remitted the application to the Minister for reconsideration on 30 April 2018.

10. The review applicant provided significantly more evidence to the Tribunal including various witness statements, photographs, money transfers, and telephone lists.

11. The review applicant and the visa applicant gave evidence separately at the hearing. The Tribunal found the review applicant and visa applicant to be candid in their evidence and credible and honest witnesses. The Tribunal accepts their oral evidence on that basis. Ms Baker, Mr Gregory and Ms Ho also individually gave oral evidence at the hearing. The witnesses gave their evidence in candid and forthright manner and the Tribunal finds the witnesses were credible and honest. The Tribunal accepts their oral evidence on that basis. The Tribunal has considered the oral evidence together with the documentary evidence to reach the findings below.

12. The issue in the present case is whether the visa applicant is the spouse of the review applicant.

    Whether the parties are in a spouse or de facto relationship

13. 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, the delegate notes, is an Australian permanent resident and has lodged a sponsorship and support of the application. The Tribunal finds that the review applicant is an Australian permanent resident.

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 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.

    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 Tribunal, as presently constituted, made a decision on 30 April 2018 that it was satisfied, on the evidence presented to the Tribunal, that the visa applicant on the review applicant were married in Vietnam on 25 October 2017 that there was nothing to suggest that the marriage was not valid. At the time of the Tribunal’s decision on this application there is nothing before the Tribunal to suggest that situation has changed. 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. The Tribunal considered the evidence in relation to the matters set out in r.1.15A(3).

17. The Tribunal considered the evidence relevant to the financial aspects of the visa applicant and review applicant’s relationship including the extent of pooling of financial resources and any sharing of day to day household expenses.

18. The review applicant told the tribunal that he was in receipt of income support and does a bit of cash or work. He pays $250 per week and rent. The review applicant provided a number of money transfer documents showing transfers to the visa applicant on a few occasions between July 2018 and March 2019. The review applicant said when he travels to Vietnam to see his wife he takes over about $3000. He said he hands that money to his wife and she sorts out everything for their travels. The visa applicant gave evidence she works in fruit and vegetable distribution and makes enough money to support herself. She agreed the review applicant sent money on occasion and they pool their money when he travels to Vietnam.

19. There is no evidence before the Tribunal that the visa applicant or the review applicant have joint ownership of assets or joint liabilities. The review applicant and visa applicant, pending to the outcome of this visa application, live in different countries. They are individually responsible for their own financial upkeep and have sufficient resources for themselves but cannot enjoy the financial benefits of pooling their resources while they are in separate countries. The Tribunal accepts the evidence that the review applicant provides some financial support to the visa applicant and gives some weight to the financial aspects of the relationship being indicative of a couple in a married relationship.

20. The Tribunal considered the evidence in relation to the nature of the review applicant and visa applicant’s household.

21. The visa applicant’s oral evidence was consistent with her written statements. She met the review applicant while in Australia in April 2016 had a copy shop. They stayed together at the review applicant’s house from 12 May 2016 and she left Australia on 12 July 2016. The Department’s records support that the review applicant left Australia five times, for periods of up to a month, between August 2016 and October 2017. After the hearing the applicant provided an itinerary showing he was travelling to Vietnam between 18 June 2019 and 13 July 2019. The visa applicant and the review applicant claim that the review applicant shares a room with the visa applicant when he is in Vietnam. The visa applicant’s children are adult and the parties do not claim to have joint responsibility for their care and support. The parties gave unrehearsed and accurate descriptions of each other’s household and living arrangements, being different enough for the Tribunal to be satisfied that their evidence was given from their own point of view.

22. The Tribunal acknowledges that a long term household has not been established however is satisfied that the nature of the review applicant and visa applicant’s household, when they are together, is indicative of a couple in a married relationship and gives this consideration weight accordingly.

23. The Tribunal considered the evidence in relation to the social aspects of the review applicant and visa applicant’s relationship.

24. Mr Gregory said he had known the review applicant for some eight years. He recalls being introduced to the visa applicant and seeing them both together on at least a weekly basis about three years ago when he recalls the visa applicant was on a three month holiday. Mr Gregory believes that their relationship is genuine and continuing based on the review applicant visa applicants ongoing affection for each other. Ms Susan Baker, the review applicant’s sister, attended the review applicant and visa applicant’s wedding in Vietnam in October 2017. She supports the relationship and confirms it is genuine and continuing. She said that our two mature people who have been through life’s ups and downs and are happy together. There are a number of photographs provided to the Tribunal showing the review applicant and the visa applicant together in social situations. The review applicant and visa applicant like to travel together.

25. The Tribunal is satisfied that the review applicant and the visa applicant represent themselves to other people as being married to each other and their friends and acquaintances are aware of their relationship and considers them to be married. The social aspects of the review applicant visa applicant’s relationship are indicative of a couple in a marriage relationship.

26. The Tribunal considered the nature of the visa applicant and review applicant’s commitment to each other.

27. The visa applicant and the review applicant first met in 2016 and their relationship progressed quickly. They have been married since October 2017 but have been unable to live together because of the visa refusal and the cost of travel on a restricted income. The parties gave evidence that they talk every night and have a good relationship with each other’s families. They are happy together and the review applicant keeps the visa applicant calm. They share the Catholic faith and the review applicant drops the visa applicant at church. They are committed to their marriage and see their relationship as long-term.

28. The Tribunal finds the visa applicant and review applicant have been in a relationship since early 2016 and married since October 2016. They have lived together when they are in the same country and provide companionship and emotional support for each other. The nature of the visa applicant and review applicant’s commitment to each other is indicative of a couple in a marriage relationship.

29. Having regard to the totality of the evidence and the findings above, the Tribunal is satisfied that the visa applicant and review applicant have a mutual commitment to a shared life to the exclusion of others; the relationship between them is genuine and continuing and that they do not live separately and apart on a permanent basis as required by s.5F(2)(b)-(d) of the Act.

30. 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 the time of this decision.

31. Therefore the visa applicant meets cl.309.211 and cl.309.221.

32. In relation to the secondary applicants, the Tribunal remits the applications for the visas to the Minister to consider the remaining criteria for the grant of the visa.

33. 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

34. 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 of Schedule 2 to the Regulations

    ·cl.309.221 of Schedule 2 to the Regulations

    P. Maishman
    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).