The applicant has provided the Tribunal with further information including updated relationship statement; sponsor's temporary residence applications; statements and statutory declarations from witnesses; the sponsor's 2023 and 2024 financial year tax returns and correspondence from Centrelink; money transfers; evidence of studies undertaken and/or completed by the secondary visa applicants; flight itineraries and tickets; screenshots of messages and call logs; and photographs.
[2]
The documentary evidence and the sworn evidence given at the hearing, in summary, provide the following information.
The primary visa applicant was born in Vietnam in 1973 and is a citizen of Vietnam. He was previously married in 2001 and has two daughters (the secondary visa applicants) from that marriage, born in 2002 and 2007. The primary visa applicant's marriage ended in divorce on 27 December 2018, with the primary visa applicant having sole custody of the secondary visa applicants.
The sponsor was born in 1963 in Vietnam and is an Australian citizen. She was previously married in 1988, and has one son from that marriage, Mr Ta born in 1991. She and her first husband separated when she was three months pregnant, and the marriage ended in divorce on 27 July 1992 as indicated by the sealed divorce certificate. Her last marriage was in 1994 and this marriage ended in divorce on 8 April 2011 with no children as indicated by the sealed divorce orders dated 7 April 2011.
In August 2019, the primary visa applicant travelled to Australia on a visitor (Subclass 600) visa to visit his older sisters and their families. His sisters held a party at their homes to celebrate his visit, and invited a few of their close friends. It was at this party that the primary visa applicant met the sponsor. She is the sister of his brother-in-law who had introduced the couple at the party. They exchanged phone numbers and the sponsor was happy to show him around during his visit in Australia. After that day, they met up frequently with his sisters and their families, and they went out for meals, shopping and sightseeing. The primary visa applicant also visited the sponsor's home and met her father. The parties got to know each other during this time and learnt about their broken marriages and that they had raised their children by themselves. When they all went out together, they were given space by the primary visa applicant's family to get to know each other better. He returned to Vietnam just over a week later, and the sponsor went to the airport to see him off.
After the primary visa applicant returned to Vietnam, he and the sponsor kept in contact through phone calls and text messages, and they spoke about their children, giving advice about caring for and raising them and shared personal stories. In January 2020, the sponsor travelled to Vietnam to visit him and celebrate the Lunar New Year with him and his family. The primary visa applicant, the secondary visa applicants and the sponsor's aunt and uncles went to the airport to welcome her when she arrived. The sponsor was in Vietnam for three weeks and spent the time with the primary visa applicant and the secondary visa applicant, going out for meals and sightseeing, and also visited their families. During this trip, the primary visa applicant and the sponsor confirmed their feelings for each other and the primary visa applicant introduced her to his parents at his home. In this regard, the primary visa applicant and the secondary visa applicants live with the primary visa applicant's parents as shown in the household registration booklet. They received the support of his parents, and the primary visa applicant also introduced the sponsor to his aunts and other sisters. They also attended the primary visa applicant's nephew's wedding and the sponsor was introduced to his other relatives and extended family members. The primary visa applicant received the approval of his parents for the sponsor to live with them towards the end of the trip, and her temporary residence at his home was registered. They shared household responsibilities such as going to the market together, cooking meals for the family, taking care of his parents and daughters, cleaning the house and washing dishes, preparing for and purchasing clothes for the Lunar New Year. They intended to visit and extend New Year greetings to other family and friends but kept their social interactions to a minimum due to the COVID-19 pandemic that had commenced. The primary visa applicant, the secondary visa applicants and the sponsor's uncle and his family took the sponsor to the airport when she had to return to Australia.
After the sponsor returned to Australia, she kept in contact with the primary visa applicant through phone calls and text messages and the primary visa applicant, after seeking support from his family, proposed to her on her birthday, 12 February 2021. The sponsor accepted his feelings and told her father and son, and they held an engagement ceremony on 7 March 2021 in Vietnam, which was attended by the primary visa applicant, his daughters and father, the sponsor's uncle and his family who represented the sponsor at the gathering due to the COVID-19 pandemic, and she attended by videoconference with her father and son. They registered their relationship with the NSW Registry of Births Deaths and Marriages on 5 May 2021, as shown in the relationship certificate.
The parties planned for the sponsor to travel Vietnam at the end of 2021 to register their marriage and hold a wedding ceremony but this did not occur due to the severity of the COVID-19 pandemic in Vietnam and once the pandemic started to ease, the flights were expensive and limited. During this time, they remained in contact and the primary visa applicant would also speak to the sponsor's father and son when he called the sponsor as they all lived together, and the sponsor would also talk to his parents and his daughters. They did not speak to the sponsor's mother who was in prison in Vietnam, but the primary visa applicant would go with the sponsor's aunt when she visited her mother in prison. He did not have approval to go inside, but arranged for transportation and accompanied her aunt every month to fulfill his duty as her future son-in-law. He would also take clothes and food for her aunt to pass on to her mother.
In September 2021, the primary visa applicant made the visa application, which was refused in July 2022. A short time later, the sponsor's father was diagnosed with a terminal illness and the sponsor remained in Australia to care for him. The primary visa applicant was advised not to apply for a visiting visa by his previous migration agent, and so was unable to come to Australia to support the sponsor in person and help her take care of her father, but instead provided support over the phone. He also had the responsibility of taking care of his daughters such as by preparing their meals as they both still attended school, and he had to take his youngest daughter to and from school every day. During this time, the sponsor's mother's health also started deteriorating but the sponsor was unable to travel to Vietnam as she was taking care of her father. The primary visa applicant continued to provide support to the sponsor over the phone and he accompanied her aunt to visit the sponsor's mother in hospital, although he had to remain outside as he was not authorised to visit her. A few weeks later the sponsor's mother fell into a clinical death condition, and the primary visa applicant borrowed money from his sibling for the sponsor to travel to Vietnam and arranged for her son to take care of her father. The sponsor travelled to Vietnam in April 2023 and was picked up at the airport by the primary visa applicant and the secondary visa applicant, and they went straight to the hospital. Her mother passed away after the sponsor had seen her once, and the primary visa applicant took the responsibility of arranging her funeral and borrowed some more money for the funeral expenses with the Australian government assisting with the costs of the funeral car and cremation. He had borrowed money from his sibling so was able to repay in instalments. While in Vietnam, the sponsor stayed with the primary visa applicant following making another application to register her temporary residence at his home.
After the funeral, the sponsor received a call from her son that her father's health had deteriorated and she returned to Australia in May 2023. The primary visa applicant did not have a visa as noted above and so could not return with her, and he continued to support her emotionally as she cared for her father every day with help from her son. The sponsor's father had a fall in February 2024, and after a hospital admission he was transferred to a palliative care unit where he passed away in March 2024. The primary visa applicant was told that he could not obtain a visa due to his visa application was awaiting review by the Tribunal. The sponsor told him not to send any money for the funeral expenses as the exchange rate was high, he had to look after his daughters and parents, and that as her son worked, he would contribute instead.
The years of separation, constant worry of the sponsor's father's health, and sudden passing of the sponsor's parents has had a toll on their health. The sponsor has also had various health issues of her own, with her medical treatment weakening her immune system, and these losses have affected her physical and mental health. The primary visa applicant often calls her to remind her take her medication, attend medical appointments and to offer words of encouragement. The sponsor has also provided the primary visa applicant emotional support and encouragement to stay strong and overcome the challenges of their separation for the sake of their families and also as he is taking care of two young daughters as their mother does not provide for them as he has sole custody and responsibility for them. Evidence of the primary visa applicant paying for the oldest child's university fees as well as transferring money to the child have been provided. The youngest child is still studying in secondary school and the primary visa applicant has paid for the child's school fees. The sponsor asked to contribute some money but as she was not working and receives Centrelink payments, was looking after her father and sending money to her mother while she was in prison, the primary visa applicant said he would look after his children's expenses. The documentary evidence includes a letter from Centrelink dated 1 March 2025 confirming the sponsor is receiving Centrelink payment and noting she has declared she is partnered. Her 2023 and 2024 financial year tax returns also show that she has declared the primary visa applicant to be her spouse.
Due to living in separate countries, the primary visa applicant and the sponsor do not have joint bank accounts, assets or liabilities, have shared living expenses or have made Wills. They sometimes help each other and the sponsor sends money to buy gifts for the secondary visa applicants. He also sends her gifts on her birthday.
They have discussed if their application is not approved, then the sponsor will return to Vietnam to live with him, although this would mean she would be separated from her own son in Australia. If the visa were to be granted, the primary visa applicant, the secondary visa applicants and the sponsor plan to live at his sister's house temporarily as her house is more spacious and will allow the sponsor to stop paying rent. After the primary visa applicant finds a job and they save enough, they will move out and live on their own. The primary visa applicant currently works in high-voltage power line maintenance and plans to take additional electrical courses in Australia to improve his skills in the hopes of securing employment in this field. He also has experience working as a jeweller and could apply for jobs in that field as well. His daughters will live with them, and he and the sponsor will raise and care for them.
The sponsor's son, Mr Ta, provided evidence during the hearing. He advised that from his own observations from listening to his mother on the phone, he considers their relationship to be genuine and noted how supportive the primary visa applicant was when the sponsor's father was unwell and how he provided financial support as well. Mr Ta also noted that due to his work, he sometimes sleeps away from home, and the primary visa applicant has provided assistance during this time by supporting her and he can see she is happier, which makes him reassured when staying away from home. He does not wish for his mother to be alone. He also provided a statutory declaration attesting to their relationship, as did other family members including the primary visa applicant's father, brother, uncle and niece.
[3]
Are the parties in a spouse or de facto relationship?
[4]
Clause 309.211(2) requires that, at the time the visa application was made, the primary visa applicant is the spouse or de facto partner of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen. With limited exceptions that only apply in relation to a decision to grant or not grant a Subclass 309 visa made on or after 20 August 2022, the primary visa applicant must continue to be the spouse or de facto partner at the time of the Tribunal's decision: cl 309.221. In the present case the primary visa applicant claims to be the de facto partner of the sponsor who is an Australian citizen.
'De facto partner' is defined in s 5CB of the Act and provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or not live separately and apart on a permanent basis, and the couple are not related by family: s 5CB(2).
In forming an opinion as to 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 primary visa applicant's and applicant's household and their commitment to each other as set out in reg 1.09A(3). Each of the specific matters contained in reg 1.09A(3) is effectively a question which must be answered: He v MIBP[2017] FCAFC 206. These matters have been addressed below having regard to the totality of the evidence before the Tribunal.
[5]
The oral and documentary evidence indicates that the primary visa applicant and the sponsor do not own any property or major assets jointly or separately. They do not have joint liabilities or share day-to-day household expenses. This is reasonably explained by the fact that the parties have lived in different countries and have had other financial commitments including financially supporting the secondary visa applicants, sending money to the sponsor's mother while she was in prison and then supporting her father when his health deteriorated and the subsequent funeral expenses. During these times, the evidence indicates the primary visa applicant has purchased flight tickets for the sponsor to travel to see her mother while she was in hospital and then pay for her mother's funeral expenses. The sponsor has sent the primary visa applicant money to purchase gifts for the secondary visa applicants. The parties do not otherwise send financial support to each other as the sponsor does not work and only receives Centrelink payments and any money the primary visa applicant sends the sponsor would be minimal due to the exchange rate. Further, the sponsor has also declared her relationship to Centrelink and the Australian Taxation Office, and they have had their relationship registered since May 2021.
Overall, the Tribunal is satisfied that the evidence provided of the financial aspects of the relationship supports the existence of a genuine and ongoing relationship.
[6]
The parties have lived in separate countries since the application was made, but have lived together for brief periods when the sponsor has travelled to Vietnam. In this regard, the sponsor has applied for a temporary residence to stay with the primary visa applicant, which has been registered. When they have lived together, they have shared household responsibilities including cooking, cleaning and washing dishes for the primary visa applicant's parents and children, and also cleaning and preparing for the Lunar New Year.
When in separate counties, the parties have not been able to live together and do or share household responsibilities. However, the Tribunal does not consider that this fact, given the reasonable explanations to their time apart, supports that they are not in a genuine and ongoing relationship.
Both parties have children of their own. However, the sponsor's son is an adult and works, and the primary visa applicant's daughters, while one is now an adult, are still studying and are being supported by the primary visa applicant. While the sponsor has asked that she contribute to supporting them, the primary visa applicant has declined due to the minimal money she receives and as she has had her own financial commitments looking after her parents before they both passed away. The Tribunal accepts this explanation.
Accordingly, the Tribunal is satisfied from the information available, that the nature of the household is consistent with a genuine and continuing relationship.
[7]
The evidence indicates that the sponsor was known to the primary visa applicant's family as she is the sister of the primary visa applicant's brother-in-law. They met at a party for close friends held when the primary visa applicant visited his sisters in Australia in August 2019. During this visit, he met the sponsor's father. The sponsor has also travelled to the Vietnam and they have met each other's family members there, including at the primary visa applicant's nephew's wedding. During her visits, the sponsor has stayed with the primary visa applicant who also lives with his parents and daughters. The primary visa applicant obtained his parent's support before proposing to the sponsor, who also told her father and son of the proposal. Their engagement was also attended by family in person and through video call.
Despite the limited social interactions with each other's family and friends since the parties live in separate countries as mentioned above, which has limited the planning and undertaking of their joint social activities, the sponsor has remained in contact with the primary visa applicant's parents and daughters and speaks to them over the phone. Similarly, the primary visa applicant speaks to the sponsor's son if he is home from work and when her parents were alive, he would speak to the father over the phone and accompany her aunt to visit her mother while she was in prison and then the hospital, although he had to remain outside. The Tribunal is satisfied that the parties continue to represent to others that they are in a de facto relationship and are considered by their family and friends, to be in a genuine relationship.
Accordingly, the Tribunal finds that the information available of the social aspects of the relationship supports the existence of a genuine and ongoing relationship.
[8]
The sponsor and the primary visa applicant met in August 2019 at a party held at the homes of the primary visa applicant's sisters. After spending time together, and the sponsor visiting the primary visa applicant in January 2020, they were engaged in March 2021 and they registered their relationship in May 2021. They planned to get married but this was delayed due to the COVID-19 pandemic, health concerns and later deaths of the sponsor's parents and the limited flights and increased flight prices once the pandemic eased. They have provided emotional support to each other such as the sponsor supporting the primary visa applicant in taking care of his daughters, and the primary visa applicant supporting the sponsor when her parents' health deteriorated, she was caring for her father, during the passing of both parents, as well as when the sponsor had her own health concerns. The primary visa applicant also reminds her to take her medication and attend her medical appointments.
They consider their relationship to be long term and have provided evidence of their future plans to live in Australia, purchase a home together after they have enough savings, and raise and care for the primary visa applicant's daughters. The primary, visa applicant after finding employment to support the sponsor and his daughters, wishes to undertake electrical courses to improve his skills and obtain employment in this field.
The Tribunal is satisfied the evidence of the nature of commitment the parties have to each other supports the existence of a genuine and ongoing relationship.
The Tribunal has considered all the circumstances of the relationship required under reg 1.09A(3), and is satisfied from the evidence that the requirements of s 5CB(2)(a)-(d) were met at the time the visa application was made and at the time of this decision, as the parties have a mutual commitment to shared life to the exclusion of all others, the relationship between them is genuine and continuing, they do not live separately and apart on a permanent basis, and are not related by family.
The requirements of cl 309.211 and cl 309.221 are therefore met.
[9]
Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in reg 2.03A.
Both members of the couple must be at least 18 years old: reg 2.03A(2). In this matter, at the time of application, the primary visa applicant and sponsor were at least 18 years old.
The primary visa applicant must have been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application: reg 2.03A(3). This requirement will not apply in certain circumstances, such as where the de facto relationship has been registered under a relevant state or territory law (for applications made on or after 9 November 2009), where the applicant can establish compelling and compassionate circumstances for the grant of the visa, or in certain circumstances where the sponsor held, holds or is applying for a permanent humanitarian visa.
A relationship certificate dated 5 May 2021 issued by the NSW Registry of Births Deaths and Marriages has been provided. Accordingly, the Tribunal is satisfied that the relationship has been registered under a relevant state law and therefore the requirement under reg 2.03A(3) does not apply.
The Tribunal is satisfied that the primary visa applicant meets the additional criteria prescribed in reg 2.03A.
[10]
Are the requirements for the secondary visa applicants met?
[11]
Clause 309.311 requires that at the time of the application, the secondary visa applicants are a member of the family unit of, and made a combined application with, a person who satisfied the primary criteria in Subdivision 309.21.
The Tribunal is satisfied, as evidence by the visa application, that the secondary visa applicants made a combined application with the primary visa applicant.
The birth certificates of both secondary visa applicants indicate that they were born on 30 August 2002 and 27 October 2007 and are the daughters of the primary visa applicant. The Tribunal is satisfied the secondary visa applicants are members of the family unit of the primary visa applicant.
In light of the reasons above, the Tribunal is satisfied that the primary visa applicant satisfied the primary criteria in Subdivision 309.21.
Accordingly, the Tribunal is satisfied that both the secondary visa applicants meet the requirements of cl 309.311.
During the hearing, the parties advised that both secondary visa applicants are studying and rely on the primary visa applicant for financial support to meet their basic needs for food, clothing and shelter. The Tribunal is satisfied that the secondary visa applicants continue to be members of the family unit with the primary visa applicant for the purpose of cl 309.321(a). The requirement of cl 309.321 is therefore met.
[12]
In light of the above findings, the appropriate course is to set aside the decision under review and remit the application for the visa by the primary visa applicant and the secondary visa applicants to the Minister to consider the remaining criteria for a Subclass 309 visa.
[13]
The Tribunal sets aside the decision under review and remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, in accordance with the order 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;
reg 2.03A of the Regulations.
the second and third named visa applicants meet the following criteria for a Subclass 309 (Partner (Provisional)) visa:
cl 309.311 of Schedule 2 to the Regulations;
cl 309.321 of Schedule 2 to the Regulations.
[14]
Representative for the Applicant: Mr Linh Sy Ho
Legislation Cited (1)
Review Tribunal (Consequential and Transitional Provisions No.](/cgi-bin/viewdoc/au/legis/cth/num_act/artatpn1a2024807/index.html) [1) Act 2024