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CATCHWORDS: Review of visa refusal - Subclass 309 - genuine relationship Migration Review Tribunal
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DANG, Thi Bich Huong [2002] MRTA 6540 (6 November 2002)
Last Updated: 31 March 2003

[2002] MRTA 6540

CATCHWORDS: Review of visa refusal - Subclass 309 - genuine relationship

REVIEW APPLICANT: Thi Bich Huong Dang

VISA APPLICANT: Van Tuan Le

TRIBUNAL: Migration Review Tribunal

PRESIDING MEMBER: Maritsa Eftimiou

MRT FILE NUMBER: N01/07594

DEPT FILE NUMBER: OSF2000/049237

DATE OF DECISION: 6 November 2002

AT: Sydney

DECISION: The Tribunal remits the application made by the visa applicant for a Partner (Provisional) (Class UF) visa to the Department of Immigration and Multicultural and Indigenous Affairs for reconsideration with the direction that the visa applicant meets the following criteria for a subclass 309 (Spouse (Provisional)) visa:

* clause 309.211 of Schedule 2

* clause 309.221 of Schedule 2

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the then Minister for Immigration and Multicultural Affairs (the delegate) to refuse to grant a Partner (Provisional) (Class UF) visa. Mr Van Tuan Le (the visa applicant), a national of Vietnam, born on 14 May 1970, applied for a Partner (Provisional) (Class UF) visa on 16 October 2000. The delegate's decision to refuse to grant the visa was made on 6 November 2001.

JURISDICTION AND STANDING

2. Ms Thi Bich Huong Dang (the review applicant and the sponsor), the wife of the visa applicant, lodged a valid application for review with the Tribunal on 14 December 2001. The decision is reviewable by the Tribunal and the application for review has been properly made by a person with standing to apply for review.

LEGISLATION AND POLICY

3. The Migration Act 1958 (the Act) and the various Regulations made under that Act, principally the Migration Regulations 1994 (the Regulations), provide for different classes of visas, and the criteria for the grant of visas. In reaching a decision, the Tribunal is bound by the Act, the various Regulations and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural and Indigenous Affairs (the Department). The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy.

4. The Tribunal has the power to affirm, vary or set aside a decision to refuse to grant a visa. It also has the power to remit an application for a visa to the Department for reconsideration. Such a remittal may be accompanied by directions that a visa applicant meets one or more of the criteria for a visa. It is then a matter for the Minister or a delegate to consider any remaining criteria. A review by the Tribunal is generally limited to a consideration of whether a visa applicant meets one or more essential criteria, with the application remitted or the decision affirmed on that basis.

5. The criteria and policy immediately relevant to this review are:

Legislation:

Regulation 1.15A of the Regulations.

Regulation 1.20J of the Regulations.

Part 309 of Schedule 2 to the Regulations.

Policy:

Procedures Advice Manual 3: regulation 1.15A - Interpretation - Spouse

Procedures Advice Manual 3: Division 1.4B - Sponsorship and Nomination: Spouse, Prospective Spouse and Interdependency visas.

Procedures Advice Manual 3: Division 2.2 - Certain Applicants taken to have applied for Partner (Migrant)(Class BC) and Partner (Provisional)(Class UF) visa.

Cases:

Nassouh v Minister for Immigration and Multicultural Affairs [2000] FCA 788

Bretag v Minister for Immigration, Local Government and Ethnic Affairs (Unreported, Federal Court, Loughlin J, 29 November 1991)

6. The Tribunal generally has regard to the Regulations as they stood at the time of a visa application. However, subsequent amendments may apply in some circumstances.

EVIDENCE

7. The Tribunal has the following documents:

T1 - MRT case file N01/07594, folio numbered 1-168.

D1 - Departmental case file OSF2000/049237, partly folioed to 128.

8. The visa applicant was sponsored in connection with the visa application by Ms Thi Bich Huong Dang (the review applicant), an Australian citizen, who was born in Vietnam on 14 May 1970.

9. The visa applicant claims to have met the sponsor initially in 1988 when they attended then same school in Vietnam. They became friends and he attended the sponsor's wedding in June 1994. The sponsor then migrated to Australia. In 1997 the sponsor separated from her husband. She then returned to Vietnam in January 1998 and they met each other again. The sponsor remained in Vietnam until 21 April 1998 and their former friendship developed into a love relationship during this visit. After returning to Australia the sponsor obtained a divorce from her husband on 11 August 1998. The sponsor and the visa applicant decided to marry in August 1998. The sponsor returned to Vietnam and celebrated their engagement on 14 March 2000 and a wedding was held on 26 March 2000. The sponsor stayed with the visa applicant until 3 June 2000. The Department's movement records indicate that the sponsor was in Vietnam between 8 November 2001 and 12 March 2002 and that she became pregnant during this trip. The review applicant gave birth to a boy on 11 September 2002.

10. The evidence provided was submitted to the Department in support of the visa application:

* A copy of the sponsor's Australian citizenship certificate;

* Copies of the sponsor's Australian passport;

* A copy of a single status certificate for the sponsor issued by the registry of births, deaths and marriages;

* Certified copies of two documents in Vietnamese which are not accompanied with translation;

* A copy of a decree nisi of dissolution of marriage relating to the sponsor stating that she was divorced from her husband on 11 August 1998;

* A copy of the Vietnamese marriage certificate for the sponsor and the visa applicant dated 25 January 1999 accompanied with a certified translation;

* A copy of a household book relating to the visa applicant accompanied with a certified translation;

* A copy of the visa applicant's Vietnamese identity card accompanied with a certified translation;

* A legal record note issued by the Justice Department of Vietnam accompanied with a certified translation stating that the visa applicant has had no criminal records in Vietnam;

* A copy of the visa applicant's C.V. accompanied with a certified translation outlining his personal details, education and employment history;

* A copy of the sponsor's birth certificate accompanied with a certified translation;

* A copy of the visa applicant's birth certificate accompanied with a certified translation;

* A statutory declaration by the sponsor dated 3 October 2000 briefly outlining the background of her relationship with the visa applicant;

* A copy of the sponsor's benefit payment summary from Centrelink;

* Copies of telephone bills for Mr Sinh Van Hong for the period of September 2000 to July 2001 showing regular telephone calls to Vietnam;

* Certified copies of letters, cards and post marked envelopes from the visa applicant to the sponsor and vice versa;

* Several copies of photographs relating to the couple's engagement and wedding ceremonies and other occasions;

11. In arriving at his decision the delegate noted that the sponsor and the visa applicant had exchanged letters only for four months following the sponsor's return to Australia. The delegate therefore stated that she was not satisfied that the couple had maintained a genuine and continuing relationship together by means of an exchange of letters. The delegate also noted that the couple's evidence of telephone contact is from the account of Mr Sinh Van Hoang in Australia who is from the visa applicant's home-town of Hai Phong. The delegate was therefore not totally satisfied that this evidence represents a telephone contact between the sponsor and the visa applicant. The delegate therefore concluded that the visa was not granted as she was not satisfied that the applicant meets the requirements of clause 309.221 of the Migration Regulations.

12. The following evidence has been submitted to the Tribunal in support of the review application:

* The sponsor's medical records for the period of March/April 2002 indicating that she is pregnant;

* A copy of the visa applicant's statutory declaration dated 28 December 2001 accompanied with a certified translation stating that the sponsor has cohabited with the visa applicant at his house during her visit to Vietnam in 2000 and 2001;

* Certified copies of the sponsor's passport;

* Telephone bills in the name of Mr Sinh Van Hoang for the period of September 2000 to July 2001;

* Several Australian phone cards;

* Several photographs showing the couple's engagement and wedding ceremonies and at other occasions with family and friends;

* Several cards, letters and post marked envelopes from the visa applicant to the sponsor and vice versa;

* A submission to the Tribunal by the sponsor's representative;

* A certified copy of a medical certificate dated 14 May 2002 stating that the sponsor is 24 week pregnant and her expected date of confinement is 1 September 2002;

13. On 19 June 2002 the Tribunal advised the sponsor that her request for priority processing has been approved.

14. A hearing was held on 1 October 2002. The sponsor applicant and Ms Thi Mai Nguyen gave evidence. The Tribunal tried unsuccessfully to take evidence from the visa applicant in Vietnam.

15. The sponsor confirmed the history of the relationship with the visa applicant as set out elsewhere in this decision. The sponsor attended the hearing with her two week old baby who was born in Sydney on 11 September 2002.

16. The sponsor told the Tribunal that her relationship with her previous husband broke down because she found out that he had been having a long term affair and had had a child with another woman.

17. The sponsor told the Tribunal that she travelled to Vietnam in November 2001 and had planned to stay with the visa applicant until the Tribunal made a decision. In early January 2002 the sponsor realised she was pregnant. The sponsor returned to Australia in March 2002 on the advice of her solicitor who told her she needed to be in Australia for the birth of her child and for the review proceedings.

18. The sponsor gave the Tribunal detailed evidence regarding her contact by telephone and letters with the visa applicant.

19. The sponsor's friend Ms Thi Mai Nguyen gave evidence to the Tribunal. Ms Nguyen is an Australian citizen. Ms Nguyen gave evidence to the Tribunal that she is an Australian citizen. The sponsor resides with Ms Nguyen and Ms Nguyen is aware of the visa applicant and sponsor's relationship. Ms Ngyuen last spoke to the visa applicant after the birth of the baby whilst the sponsor was still in hospital. From her observations of the relationship Ms Ngyuen believes the relationship to be genuine and continuing.

FINDINGS

20. The Tribunal findings are based on the material in the Department and Tribunal files as well as the evidence given during the hearing.

21. At the time the visa application was lodged Partner (Provisional) (Class UF) contained the following subclasses: subclass 309 (Spouse or Partner) and subclass 310 (Interdependency (Provisional). The only subclass in respect of which any claims have been advanced is subclass 309. There is no evidence to suggest that the visa applicant meets the key criteria for a subclass 310 visa.

22. At the time of application the visa applicant was validly sponsored by Ms Thi Bich Huong Dang who is an Australian citizen.

23. Based on the information before the Tribunal, the sponsor arrived in Australia on a Subclass 100 Spouse visa on 6 July 1995. Given that she was sponsored more than 5 years ago she therefore satisfies the Regulation 1.20J of the Migration Act.

24. The visa applicant and the sponsor were married to each other in Vietnam on 26 March 2000 and their marriage certificate was issued on 26 April 2000. At the time of application the visa applicant and the sponsor were married to each other under a marriage that is recognised as valid for the purposes of the Act. At the time of decision they are still married to each other.

25. The Tribunal therefore must now consider whether the visa applicant was the `spouse' of the sponsor at the time of application and continues to be the `spouse' of the sponsor at the time of decision.

26. Regulation 1.15A contains the test to be applied to determine whether one person is the `spouse' of another person, whether in a married or a de facto relationship. In Nassouh v Minister for Immigration and Multicultural Affairs [2000] FCA 788 the Federal Court considered this provision of the Regulations. The Court held that subregulation 1.15A(3) set out mandatory considerations. Accordingly, the Tribunal, in forming an opinion whether a married relationship or de facto relationship exists must take into account the considerations set out in subregulation 1.15A(3). These considerations relate to all of the circumstances of the relationship including, in particular, the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and nature of the persons' commitment to each other.

27. Having regard to the considerations for a spousal relationship set out in regulation 1.15A at the time of application and at the time of decision, the evidence and issues are discussed under the following headings:

The financial aspects of the relationship

Whilst the couple do not have joint ownership of assets or presently share a bank account, this is understandable, given that they live in different countries. The sponsor gave evidence to the Tribunal that she has been employed in Australia in a laundry and she has used her savings to be able to travel to Vietnam to see her spouse. The Tribunal accepts the sponsor's evidence that the visa applicant works and he supported her when she visited him in Vietnam.

The nature of the household

There is limited evidence before the Tribunal of joint household arrangements, but this is understandable, as the visa applicant and the sponsor currently live in different countries. There is evidence before the Tribunal, which the Tribunal accepts that the sponsor has resided with the visa applicant in Vietnam during her visits. The sponsor visited Vietnam on 28 February 2000 and resided with the visa applicant in his home after their wedding on 26 March 2000 until the sponsor returned to Australia on 3 June 2000. The Tribunal is also satisfied that the sponsor resided with the visa applicant at his home between 8 November 2001 when she travelled to Vietnam and 12 March 2002 when she returned to Australia. The sponsor has provided evidence form the Vietnamese authorities that she resided with the visa applicant at his home during these visits to Vietnam.

The social aspects of the relationship

The Tribunal is satisfied that the couple hold themselves out as married to their family and friends. Ms Nguyen gave evidence to the Tribunal that the sponsor lives with her in Australia and she has spoken to the visa applicant on the telephone. Numerous photographs of the wedding ceremony and other occasions have been provided. The Tribunal accepts the couple's evidence that during the visa applicant's three visits to Vietnam they undertook joint social activities together.

The nature of the persons' commitment to each other:

The visa applicant and the sponsor have known each other as friends for many years. During the sponsor's visit to Vietnam in 1998 their relationship changed. After the sponsor returned to Australia they remained in contact by telephone and letters. The couple married in Vietnam on 26 March 2000. After their marriage the sponsor lived with the visa applicant until she returned to Australia on 3 June 2000. The sponsor also visited her husband in Vietnam between November 2001 and March 2002 and there is evidence that she has become pregnant during this trip. The sponsor has given evidence that is supported by her legal advisor that she would have remained in Vietnam except that her advisor suggested that she return to Australia. The sponsor gave birth to a son on 11 September 2002. The sponsor has provided the Tribunal with a birth certificate which lists the visa applicant as the child's father.

The visa applicant and the sponsor appear to have kept in contact mainly through letters and phone calls. The Tribunal has been provided with considerable evidence of this contact in the form of letters, telephone bills and telephone cards.

The Tribunal has been provided with more information than was available to the primary decision maker. The sponsor has provided the Tribunal with numerous letters and telephone bills that indicate that the visa applicant and the sponsor have remained in regular contact during all period of separation. Although the Tribunal was not able to hear evidence from the visa applicant in Vietnam, the Tribunal has placed considerable weight on the evidence of a birth certificate indicating that the visa applicant is the father of the sponsor's child who was born in Australia on 11 September 2002. The Tribunal has also placed considerable weight on the length of time the sponsor remained in Vietnam after her marriage to the visa applicant and also her subsequent trip to Vietnam in November 2001 and the length of time she lived with him on that occasion.

The Tribunal has considered all of the circumstances of the relationship. The Tribunal is satisfied that the visa applicant and the sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal is satisfied that they have a genuine and continuing relationship. The Tribunal is satisfied that the couple do not live separately and apart on a permanent basis.

The Tribunal finds that the requirements of regulation 1.15A are met both at the time of application and time of decision. The Tribunal finds that the visa applicant was the `spouse' of his sponsor at time of application and accordingly he meets clause 309.211. The visa applicant continues to meet clause 309.221 at time of decision.

28. Given these findings, the appropriate course is to remit the application for the visa to the Department to consider the remaining criteria for a subclass 309 visa. If the visa applicant is found to meet the remaining criteria, then the visa applicant is entitled to the grant of a subclass 309 visa.

DECISION

29. The Tribunal remits the application made by the visa applicant for a Partner (Provisional) (Class UF) visa to Department of Immigration and Multicultural and Indigenous Affairs for reconsideration with the direction that the visa applicant meets the following criteria for the grant of a subclass 309 (Spouse (Provisional)) visa::

* clause 309.211 of Schedule 2

* clause 309.221 of Schedule 2

DANG, Thi Bich Huong [2002] MRTA 6540 (6 November 2002)

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