Le (Migration) [2023] AATA 3496 (15 September 2023)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Ms Truong Nha Tran Le

REPRESENTATIVE: Mr Michael Cai

CASE NUMBER: 1833901

HOME AFFAIRS REFERENCE(S): BCC2018/1374264

MEMBER: Moira Brophy

DATE: 15 September 2023

PLACE OF DECISION: Sydney

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 of Schedule 2 to the

Regulations; and

 cl 820.221 of Schedule 2 to the

Regulations.

Statement made on 15 September 2023 at 9:30am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and
continuing relationship – validly married – financial, household and social aspects of
relationship and nature of commitment – young Australian citizen child – additional
information, consistent and convincing evidence and supporting statements from family and
friends – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), Schedule 2, cls 820.211(2)(a), 820.221

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 Home
Affairs on 14 November 2018 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 23 March 2018 on the basis of her relationship with her
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 applicant did not satisfy
cl 820.211 because the delegate was not satisfied that the applicant was in a genuine and
continuing relationship with her sponsor.

4. The applicant appeared before the Tribunal on 6 September 2023 to give evidence and
present arguments. The Tribunal also received oral evidence from Mr Khac Lan Chau, who
is the applicant's sponsor. The Tribunal hearing was conducted with the assistance of an
interpreter in the Vietnamese and English languages.

5. The applicant was represented in relation to the review. The representative attended the
Tribunal hearing.

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

Background

7. The applicant, Ms Truong Nha Tran Le is a 28-year-old female currently residing in Sydney.
She was previously married to Mr Van Kiem Nguyen in the period from 7 March 2015 to 6
August 2017. Her parents and two brothers live in Vietnam, and she has one sister living in
Canada.

8. The sponsor, Mr Khac Lan Chau is a 42-year-old male living in Sydney. He has declared no
previous relationships. He arrived in Australia from Vietnam with his mother and siblings on
17 October 1993. He is an Australian citizen. His parents, one brother and two sisters are
residing in Australia.

9. At the time of application, the parties stated they met on 19 September 2015 at Cabramatta.
They commenced dating and they committed to a shared life to the exclusion of all others on
24 December 2015. They were married in Australia on 28 January 2018.

Tribunal proceedings

10. In making its findings, the Tribunal has considered documents contained in the Department
and Tribunal files and oral evidence provided by the applicant and sponsor at the hearing.

11. The parties gave coherent oral evidence about the circumstances in which they met, the
development of their relationship and their current living arrangements.

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12. The Tribunal accepts the parties’ oral evidence that they met in person on 19 September
2015. They committed to a relationship with each other to the exclusion of all others on 24
December 2015. They were married on 28 January 2018 in Australia. They lodged this
application on 23 March 2018. Their first child, Chantelle, was born at Bankstown Hospital
on [Date].

CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the visa applicant and the sponsor were in a
genuine and continuing relationship at the time of application and continue to be in a
genuine and continuing relationship at the time of this decision.

Whether the parties are in a spouse or de facto relationship

14. 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.

15. ‘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 of the relationship, 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?

16. If the parties are validly married, they may meet the requirements of a spousal relationship,
but not a de facto relationship. There is nothing in the information before the Tribunal to cast
doubt on the validity of the parties’ marriage on 28 January 2018 and it was not disputed by
the delegate. Consequently, in the absence of any evidence to the contrary, the Tribunal
finds 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

17. The Tribunal considered the financial aspects of the relationship – including joint ownership
of assets; joint liabilities; the extent of pooling of financial resources; any legal obligations
owed to the other party; and any sharing of day-to-day household expenses.

18. The parties reside together in a home that was purchased by the sponsor in 2018. He
purchased the house for $785,000. He has a mortgage in his name with NAB for $700,000
and the mortgage repayments are currently $4,141 per calendar month. These repayments
are direct debited from their joint account. Prior to purchasing this house, they lived with the
sponsor’s parents in a home owned in his name, but which was in reality an asset shared

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 with his parents and siblings. When that house was sold, the funds were divided among the
family members and the sponsor used his allotted share of $200,000 to purchase their
current home including paying the stamp duty and carrying out some renovations prior to
their moving in.

19. The sponsor is in full time employment with a tiling company. He works five to six days per
week and is paid around $1800 net per week depending on the number of hours worked. His
pay is electronically transferred into their joint account. The applicant works three days a
week in administration for the tile company at which the sponsor is employed. Her working
hours are flexible and she is paid $467 net per week into their joint account.

20. The sponsor is in receipt of family tax benefits payments from Centrelink, and these are paid
into their joint account.

21. A perusal of the bank statements provided is indicative of their meeting day-to-day expenses
from their joint accounts.

22. They presently do not have any joint real estate as the house is in the name of the sponsor
only. The parties gave consistent evidence that this was due to stamp duty and other penalty
charges because of the applicant not having permanent residency. They presently do not
have any savings. They do not have any joint liabilities.

23. Overall, the Tribunal finds the financial aspects of the parties’ relationship are consistent with
their being in a genuine spousal relationship both at the time of application and at the time of
decision.

Nature of the household

24. In considering the nature of the household, the Tribunal has considered the evidence
including any joint responsibility for care and support of children; the parties' living
arrangements; and any sharing of housework.

25. The Tribunal accepts the parties have generally lived together on a continuing basis since
2015. The Tribunal accepts the sponsor was absent for a period of some 20 months but that
during this period, the applicant continued to live with the sponsor’s family in the home
owned by the sponsor.

26. The parties provided consistent and convincing evidence regarding the arrangements for
their household. The applicant is responsible for the majority of the household chores, the
cooking, and the washing. The sponsor tends to the gardens. The applicant does the
grocery shopping and sometimes they go together at weekends.

27. They have a young daughter, and the applicant tends to the majority of her caring needs.

28. The evidence of the establishment of a joint household provides significant weight in support
of the finding of a genuine and continuing relationship.

29. The Tribunal finds the nature of the household is consistent with their being in a genuine
spousal relationship at the time of application and at the time of decision.

Social aspects of the relationship

30. In considering the social aspects of the relationship, the Tribunal has considered whether the
parties represent themselves to other people as being married to each other; the opinion of

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 friends and acquaintances about the nature of the relationship; and any basis on which the
persons plan and undertake joint social activities.

31. At the time of application, the parties provided a number of statutory declarations from family
and friends which attested to the genuineness of the relationship. The information in these
declarations is consistent with the other evidence before the Tribunal.

32. The parties provided documentary evidence to support their oral evidence at the hearing that
they have enjoyed trips together and with members of the sponsor’s family to places such as
Port Macquarie, Nelson Bay, Jervis Bay and Lake Conjola.

33. On the basis of the oral evidence of the parties and the evidence provided by way of
photographs, the Tribunal finds that the relationship between the applicant and her sponsor
is recognised and supported by their family and friends. The Tribunal is satisfied that the
parties represent themselves as being married to one another to their family, friends, and the
wider community.

34. The Tribunal finds the social aspects of the relationship are consistent with their being in a
genuine spousal relationship at the time of application and at the time of decision.

Nature of the persons’ commitment to each other

35. In considering the nature of the persons' commitment to each other, the Tribunal considered
the duration of the relationship; the length of time they have lived together; the degree of
companionship and emotional support they draw from each other; and whether they see the
relationship as long-term.

36. The Tribunal finds that the visa applicant and her sponsor have been in a committed
relationship since they met in 2015. They have lived together continuously since the end of
2015 except for the period when the sponsor was incarcerated. The Tribunal was mindful the
applicant was not divorced from her first husband until August 2017.

37. The parties were familiar with the details of each other’s families and with each other’s daily
work schedules.

38. The Tribunal was mindful there was a young child who was an Australian citizen. Her
interests and needs are best served by her parents being together in Australia.

39. The parties demonstrated a detailed knowledge of each other’s lives and daily routines.
Their evidence about their future was consistent. The Tribunal is satisfied that the applicant
and her sponsor are committed to being in a long-term relationship. The degree of
companionship and emotional support the parties clearly draw from one another provides
significant weight in support of the finding that the parties are in a genuine and continuing
relationship.

CONCLUSION

40. The Tribunal has had the benefit of receiving oral evidence in person from the parties, as
well as seeing the parties interact with each other. It has also received a considerable
amount of additional information that was not before the delegate. The Tribunal accepts the
parties were inexperienced and that led to them not understanding the type of
documentation required by the original decision maker.

41. Given these findings, the Tribunal is satisfied that at the time of application, the parties were
in a genuine and continuing relationship, and at the time of this decision, the parties are

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 validly married, have a mutual commitment to a shared life as husband and wife to the
exclusion of all others, and that the relationship is genuine and continuing. The Tribunal is
satisfied the parties live together and therefore do not live separately and apart on a
permanent basis.

42. Accordingly, the Tribunal finds that the applicant satisfies the definition of ‘spouse’ in s 5F(2)
(a)-(d) and the parties are in a spousal relationship.

43. As the requirements of cl 820.211(2) are met, the Tribunal finds that cl 820.211 is satisfied.

44. The Tribunal further finds that at the time of the Tribunal's decision, the applicant continues
to be the spouse of the sponsor and continues to meet the requirements in cl 820.211(2),
thus satisfying cl 820.221(1).

45. 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

46. 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 of Schedule 2 to the Regulations; and

 cl 820.221 of Schedule 2 to the Regulations.

Moira Brophy
Member

Case Number 1833901 Page 9 of 10

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).

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