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1205465 [2013] MRTA  1111  (3 May 2013)

Last Updated: 13 June 2013

1205465  [2013] MRTA 1111  (3 May 2013)

DECISION RECORD

APPLICANT: Mrs Trang Ngoc Thi Nguyen

MRT CASE NUMBER: 1205465

DIAC REFERENCE(S): CLF2011/54864

TRIBUNAL MEMBER: Margret Holmes

DATE: 3 May 2013

PLACE OF DECISION: Melbourne

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

• cl.820.211 of Schedule 2 to the Regulations; and
• cl.820.221(1) of Schedule 2 to the Regulations.

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 and Citizenship (the Minister) to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
2. The applicant applied to the Department of Immigration and Citizenship (the Department) for the visa on 31 March 2011. The delegate decided to refuse to grant the visa on 5 April 2012 and on that day notified the applicant of the decision by letter.
3. The delegate refused the visa application on the basis that the applicant did not satisfy cl.820.211 and cl.820.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because insufficient evidence about the relationship had been provided.
4. The applicant applied to the Tribunal on 26 April 2012 for review of the delegate’s decision.
5. The delegate’s decision is an MRT-reviewable decision under s.338(2) of the Act and the applicant has made a valid application for review under s.347 of the Act.

BACKGROUND

6. The visa applicant is 25. The sponsor was born in Vietnam and has been an Australian citizen since 10 September 1985 (a copy of his Certificate of Australian Citizenship and of the biographical page of his Australian passport are at ff 5 - 6 of the Department’s file). He is 32 and works as a draftsperson.
7. The visa applicant and the sponsor met on 5 January 2007 in Dalat Vietnam at a wedding where they were both part of the bridal party. The Tribunal was told by the sponsor that he was immediately smitten with the visa applicant. She said he flirted with her. She had initially not been as interested as he was but her parents were keen for her to get to know him and her affection for the sponsor grew into love. The couple had a large engagement celebration in Vietnam in January 2008.
8. The Tribunal has before it the Department’s file relating to the visa application. There is limited information on that file and considerable further information was submitted to the Tribunal, including the important Statement of Partner Relationship, a selection of photos and the birth certificate for the couple’s baby.
9. The applicant appeared before the Tribunal on 24 April 2013 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Thanh Hai Ho Huynh who is the applicant‘s husband and sponsor of the application. A number of other relatives of the parties attended the Tribunal hearing but it was not necessary for the Tribunal to take evidence from them. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
10. Witness statements dated 19 and 24 April 2013 were submitted to the Tribunal. One is from a long-time friend of the sponsor’s and another person, both of whom live with the sponsor and the visa applicant and their baby. Both describe their observations that the relationship is happy and genuine.
11. Also provided to the Tribunal was a copy of a Police Certificate issued by the Australian Federal Police on 27 October 2011 in respect of the visa applicant (f 42 of the Department’s file).

RELEVANT LAW

12. There is a two stage process for partner visas. The visa applicant must hold a provisional visa, a Partner (Temporary) (Class UK) visa, in order to be granted a permanent visa, a Partner (Residence) (Class BS) visa. The grant of the provisional visa enables a visa applicant to remain in Australia on a temporary basis. The temporary visa can be replaced by the grant of a permanent visa in a range of circumstances, normally once at least 2 years has passed since the application was made, and the decision-maker is satisfied that the relationship is continuing.
13. The Partner (Temporary) (Class UK) visa class contains one visa subclass: Subclass 820 (Partner).
14. The criteria for a Subclass 820 visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria to be satisfied at the time of application are that the applicant is not the holder of a Subclass 771 (Transit) visa and that he or she meets one of the alternate requirements set out in cl.820.211(2), (3), (4), (5), (6), (7), (8), or (9): cl.820.211(1) of Schedule 2 to the Regulations.
15. In the present case, only cl.820.211(6) is relevant to the applicant’s claimed circumstances. Subclause 820.211(6) requires that at the time of application the applicant: be the holder of a Subclass 300 visa; have validly married the sponsoring partner; be sponsored by the spouse, or where the spouse has not turned 18, by a relevant parent or guardian; and continues to be the spouse of the sponsoring partner.
16. The primary criteria to be satisfied at the time of decision are that the visa applicant continues to meet the requirements of cl.820.211(2), (3), (4), (5), (6), (7), (8) or (9) except where the sponsoring partner has died, or the relationship has ceased and either relevant family violence has occurred or where the visa applicant and sponsor have legal obligations to a child: cl.820.221(1) of Schedule 2 to the Regulations.
17. The principal issue in the present case is whether the applicant is the spouse of the sponsor at the time of application and the time of decision.
18. Section 5F of the Act defines the term ‘spouse’ and provides that a person is the spouse of another where those two people 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: s.5F(2)(a). Additionally, the Tribunal must be satisfied that there is a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship is genuine and continuing, and that the couple live together, or do not live separately and apart on a permanent basis: s.5F(2)(b)-(d).
19. In forming an opinion whether two persons are in a married relationship, in relation to an application for a Partner (Temporary) (Class UK) visa, the Tribunal must have regard to all the circumstances of the relationship, including in particular the considerations set out in r.1.15A(3). These considerations relate to the financial aspects, the nature of the household, the social aspects and the nature of the persons’ commitment to each other.

FINDINGS AND REASONS

20. The visa applicant was granted a Prospective Marriage (Class TO(T)) Subclass 300 visa on 17 June 2010 and she arrived in Australia on 3 August 2010. The Tribunal is satisfied that the applicant holds a Subclass 300 (Prospective Marriage) visa.
21. For the reasons that follow, the Tribunal is satisfied on the basis of the material before it that the visa applicant is and was at the time of application the spouse of the sponsor within the meaning of r.1.15A.
22. The couple married on 17 January 2011 and a copy of their Marriage Certificate is at ff 12 and 14 of the Department’s file. It shows that the marriage was registered on 21 January 2011. The Tribunal was told the wedding was a small family event. Accordingly, the Tribunal finds that at the time of application for the visa, and at the time of this decision, the applicant and sponsor were and remain married to each other under a marriage that is recognised as valid for the purposes of the Act. They therefore satisfy the requirements of r.1.15A(1A)(a) for a married relationship.
23. In considering whether the applicant and sponsor have, and had at the time of application, a mutual commitment to a shared life as husband and wife to the exclusion of all others, and whether their relationship is genuine and continuing, the Tribunal has had regard to all of the circumstances of the relationship, including evidence of the financial and social aspects and the nature of the applicant’s and sponsor’s household and their commitment to each other.
24. The Tribunal notes at the outset that the visa applicant and the sponsor have now lived together in Australia for more than two and a half years and have a baby together. It is the Tribunal’s view that this is very strong evidence that they are in a genuine and continuing married relationship and of their shared commitment to a life together as husband and wife.
25. The sponsor is in full time employment as a professional draftsperson. He provides the visa applicant with money to supplement what she earns from casual beauty therapy work. The Tribunal is satisfied that the couple’s financial arrangements are consistent with them being in a married relationship.
26. After arriving in Australia in August 2010, the visa applicant lived with the sponsor at his parents’ house along other members of his family. They later moved into another residence which they rent from the sponsor’s parents and share with others (although they went back to the sponsor’s parents for a time during the visa applicant’s pregnancy). Various letters and bills were submitted to the Tribunal showing that the two had a common address. The Tribunal was told that the sponsor cares for the baby while the visa applicant is at work on Friday afternoon and Saturday. The Tribunal considers that the couple’s household arrangements are consistent with them being in a married relationship.
27. A number of photos were submitted of the couple in a variety of setting with a number of people in 2010 and 2011. The Tribunal also notes that the attendance of so many family members and friends at the Tribunal hearing was itself an indicator of the recognition of the two as a married couple within their community. As well, the Statement on Partner Relationship describes the kinds of social activities in which the visa applicant and the sponsor take part, together and individually. The Tribunal considers that the evidence indicates that the two see themselves as a married couple and are regarded as such by family and friends.
28. Perhaps the most compelling piece of evidence that the couple is in a committed relationship is their baby son Thalon Tam Thien Huynh who was born on 29 April 2012 (a copy of the baby’s birth certificate was provided to the Tribunal and is at f 81 of the Tribunal file). He came to the hearing. The visa applicant’s pregnancy was not free of difficulty and in the Statement of Partner Relationship and at the hearing both the visa applicant and the sponsor talked about the issues which arose for them, mainly because the visa applicant contracted chicken pox early on (evidence of medical appointments and pathology tests was submitted to the Tribunal). The baby was to turn one in the week after the Tribunal hearing and the Tribunal was told about the party which was planned for him.

CONCLUSIONS

29. The Tribunal finds that at the time of application, the applicant was the holder of a Subclass 300 (Prospective Marriage) visa, and had married the sponsor under a marriage that is recognised as valid for the purposes of the Act. The Tribunal also finds that the applicant was sponsored by the sponsoring partner at the time of application.
30. The Tribunal is satisfied that at the time of visa application both the visa applicant and the sponsor were committed to a shared life as husband and wife to the exclusion of all others, and that their relationship was genuine and continuing. The Tribunal is also satisfied that at the time of application the applicant and sponsor were living together. The Tribunal finds that the applicant and sponsor were in a married relationship and the applicant was the spouse of the sponsor within the meaning of s.5F.
31. Accordingly the Tribunal is satisfied that the applicant meets cl.820.211(6) Having met the criteria in cl.820.211(6), and as the applicant was not the holder of a Subclass 771 (Transit) visa at the time of application, the Tribunal find that the applicant meets cl.820.211(1).
32. The Tribunal further finds that at the time of the Tribunal’s decision the applicant continues to be the sponsor’s spouse, and continues to meet the requirements in cl.820.211(6) and so satisfies cl.820.221(1).
33. The Tribunal will return the visa application to the Department for reconsideration accordingly. If the applicant meets the remaining criteria, the applicant will be entitled to the grant of a Subclass 820 visa.

DECISION

34. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
    • cl.820.211 of Schedule 2 to the Regulations; and
    • cl.820.221(1) of Schedule 2 to the Regulations.
      

Margret Holmes
Member