1408892 (Migration)

[2016] AATA 3697

1408892 (Migration) [2016] AATA 3697 (7 April 2016)

DECISION RECORD

REVIEW APPLICANT:  Ms Thi Huynh Thao Nguyen

VISA APPLICANTS:  Mr Anh Tu Nguyen
Mr Anh Huy Hoang
Mr Anh Khoi Hoang

MRT CASE NUMBER:  1408892

DIBP REFERENCE(S):  OSF2013/027764

TRIBUNAL MEMBER:  Lisa Lo Piccolo

DATE:7 April 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.

Statement made on 07 April 2016 at 9:24am

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 12 May 2014 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 6 August 2013 on the basis of their relationship with their sponsor, the review applicant (the sponsor). 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. Relevantly to this matter the primary criteria include cl.309.211.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 and cl.309.221 because the delegate was not satisfied that the visa applicant and the sponsor have a mutual commitment to a shared life together as husband and wife.  A copy of the delegate’s decision was provided to the Tribunal by the sponsor.

4. The sponsor appeared before the Tribunal on 31 March 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, the visa applicant’s elder brother Anh Tu Nguyen, and Mrs Thanh L Manh (the visa applicant’s sister in law). 

5. The sponsor was represented in relation to the review by her registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the visa applicant is the sponsor’s spouse.

Whether the parties are in a spouse or de facto relationship

1. 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 sponsor who is an Australian citizen.

2. ‘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 husband and wife 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 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 visa applicant’s and sponsor’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.

Are the parties validly married?

1. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship.  The visa applicant and the sponsor were married on 3 May 2013.  The visa applicant and the sponsor submitted a certified copy of their marriage certificate issued in Australia to the Tribunal.  There is nothing in the information before me to cast doubt on the validity of the marriage, and it was not disputed by the delegate.  The Tribunal accepts that the visa applicant and the sponsor were validly married under the laws of Australia, and finds that the marriage is valid for the purposes of the Act as required by s.5F(2)(a).

Are the other requirements for a spousal relationship met?

Background

1. The visa applicant is a 45 year-old male. He is a citizen of Vietnam.  The sponsor is a 40 year old Australian citizen of Vietnamese descent. 

2. The visa applicant and the sponsor claim that they met through the visa applicant’s brother in May 2008.  The visa applicant’s brother is married to the sponsor’s sister.  They met again in Vietnam when the sponsor attended the engagement of one sister and wedding of another.  The next time they saw each other in person was in September 2011 when the visa applicant was visiting Australia for a week or so.  They maintained occasional telephone contact.  On 25 September 2012 the visa applicant expressed feelings to the sponsor.    The visa applicant came to Australia on 25 December 2012 and remained in Australia for one week.   He proposed to the sponsor during this visit and she agreed to get married.  The visa applicant returned to Australia on 30 March 2013 for 4 days to lodge the Notice of Intention to Marry.  The visa applicant returned to Australia on 28 April 2013 and the visa applicant and sponsor were married in Australia on 3 May 2013.  The visa applicant returned to Vietnam on 7 May 2013.  Since the marriage, the visa applicant has returned to Australia in October 2014 (for 5 days), March 2015 (for 2 weeks), July 2015 (for approximately 1 week), September 2015 (for approximately 1 week), and January 2016 (for 2 weeks).

3. On 6 August 2013 the visa applicant applied for the subclass 309 visa and he was sponsored in connection with the visa application by the sponsor.  The Delegate was not satisfied that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others, or that the relationship was genuine and continuing. 

4. The Tribunal must consider all the circumstances of the relationship, (including the criteria specified in r.1.15A) in determining whether the parties are in a “married relationship” as defined by s.5F, and whether the relationship falls within the definition of “spouse”.

5. In assessing these issues, the Tribunal has had regard to all documents on the Departmental file as well as the documents submitted to the Tribunal.  This includes money transfers, greeting cards exchanged between each other, printouts of viber conversations, telephone records, photos of the visa applicant and sponsor with others, invoices of purchase of goods in joint names, bank statements in joint names, visa applicant’s visitor visas and associated statutory declarations, sponsor’s travel itinerary to Vietnam in February 2014, temporary stay declarations February 2014, joint receipts, statutory declarations (Form 888s), letters in support as well as the representative’s submissions.

The financial aspects of the relationship

1. The evidence before the Tribunal suggests that the visa applicant and the sponsor opened a bank account in joint names with the Commonwealth Bank in May 2013.  Noting that the visa applicant continues to reside overseas, the account has predominantly been used by the sponsor.  There is no other evidence before the Tribunal to establish that the parties have combined their affairs or that they have pooled their assets and liabilities.The consistent evidence of the visa applicant and sponsor though was that they share their financial commitments when they are together, and intend to pool their finances when they are living together on a full time basis. 

2. Having said that, the Tribunal puts little weight on this aspect of the relationship since the parties are currently living in separate countries.

The nature of the household

1. The visa applicant and sponsor both gave evidence that they have lived together in Australia each time that the visa applicant has visited Australia since March 2013.  The visa applicant and sponsor both gave evidence that he visited Australia for a few days in March 2013, a week in April/May 2013, a week in October 2014, a week in December/January 2015, and about 2 weeks in March 2015.  Departmental records also indicate that the visa applicant has also spent a week in Australia in July 2015 and September 2015, and that returned to Australia on 13 January 2016 for a further 2 weeks.  The Tribunal notes that there are no documents which support that the visa applicant and sponsor were living together during the visa applicant’s visits to Australia, although this was the evidence given by the sponsor and the visa applicant and the witnesses. 

2. The Tribunal has also had regard to a hotel receipt issued in the name of the visa applicant and the sponsor dated 15 February 2014.  The visa applicant and sponsor gave evidence that they stayed together when the sponsor visited the visa applicant in Vietnam in February 2014.    The Tribunal acknowledges the temporary declaration which indicates that the sponsor resided with the sponsor in Vietnam between 12 February 2014 and 23 February 2014.  The Tribunal places some weight on the hotel receipt and temporary declaration.

3. The visa applicant and sponsor both gave evidence that they would live together in Australia with the visa applicant’s children.

4. However in relation to the parties’ household, as they do not presently have a joint household this factor has been given less weight in the consideration of whether the visa applicant is the spouse of the sponsor. 

The social aspects of the relationship

1. The parties have produced an album of photographs of their wedding as well as other photographs taken in different settings in Australia and Vietnam.  The Tribunal places some weight on this evidence.

2. The Tribunal has had regard to the statutory declarations (Form 888s) submitted to the Department and the Tribunal in relation to the genuineness of the relationship.  The Tribunal has also had regard to the letters of support submitted to the Tribunal.  The Tribunal places some weight on these statutory declarations and letters of support.

3. The Tribunal also notes the consistent evidence of the sponsor and the visa applicant which was supported by the visa applicant’s brother and the sponsor’s sister that the sponsor and the visa applicant have spent considerable time together in their home together during the visa applicant’s visits to Australia.  The Tribunal places some weight on this evidence.

4. Considering the evidence of social aspects of the relationship as a whole, the Tribunal is satisfied that the parties represent themselves to their respective families as being married to each other.  However given the close familial links and the absence of other evidence suggesting that the visa applicant and the sponsor have represented themselves in public to persons other than family members as being married to each other, the Tribunal places limited weight on this aspect of the relationship. 

Nature of persons’ commitment to each other 

1. The Tribunal has had regard to the fact that the relationship has been on foot for more than 3 years and the visa applicant and sponsor have been married for 2½ years.  The Tribunal has taken into account the parties’ respective ages, educational and family backgrounds and life experience. 

2. The Tribunal notes that the couple have now been married for almost 3 years and that the visa applicant has returned to Australia since the marriage on 6 occasions.  The evidence before the Tribunal is that the visa applicant stayed at the same address as the sponsor on these occasions.  However the evidence also establishes that the visa applicant’s son has been living and studying in Australia since September 2013 and a number of other members of the visa applicant’s extended family also reside in Australia.  The evidence also establishes that the sponsor’s sister is married to the visa applicant’s brother.  In the context of the matters below, the Tribunal is not satisfied that the visa applicant came to Australia for the purpose of visiting or spending time with the sponsor.   

3. With respect to their first meeting, the Tribunal was extremely puzzled by the inconsistency in the evidence regarding whether the visa applicant and the sponsor had met prior to May 2008.  It is also puzzling why the visa applicant would tell the Department that the sponsor had known his brother since 2007 as a result of her younger sister working with his brother’s wife.  It is clear from the evidence that the visa applicant’s brother has been married to the sponsor’s sister for many years.  It seems incredulous that the via applicant and the sponsor would never have met as a result of their siblings being married to each other, and why the visa application would try to conceal the family relationship from the Department.

4. The Tribunal is not satisfied that the sponsor and the visa applicant have been completely truthful about how they came to be acquainted and is concerned about their motives.  This concern is exacerbated by the fact that the visa applicant was divorced from his previous wife one month after he proposed to the sponsor and two months before his marriage to the sponsor.    

5. The Tribunal has had regard to the documents submitted to the Tribunal regarding contact between the parties.  The Tribunal notes that there is some evidence of the sponsor telephoning the visa applicant between May 2013 and February 2015.  There is however no documentary evidence to support the claim that the visa applicant and sponsor have been in contact since 2008 or, that they have been in regular contact since September 2011. After hearing the visa applicant’s evidence that they had been in “weekly contact” since September 2011, and being asked by the Tribunal to address the fact that her evidence was different, the sponsor told the Tribunal that “the applicant was correct” and they have been in weekly contact since September 2011.  However, this evidence is inconsistent with her relationship statement dated 26 July 2013 submitted to the Department wherein she states that her and the visa applicant talked to each other by phone “from time to time”.  She does not state that they spoke every week since September 2011.  She states that they saw each other in September 2011 when the visa applicant was visiting Australia and came with a friend to see her at her hairdressing salon.   She said they had dinner together that day and again before he left for Vietnam and on her birthday on 25 September 2012, he called her and told her he had feelings for her. 

6. Further, the Tribunal raised its concerns with the sponsor regarding the suddenness of their relationship development.   The Tribunal questioned the sponsor about her decision to marry a man she had met in 2008 and had only spoken to “every now and then”.  The sponsor did not tell the Tribunal that her decision was not sudden and that they had been speaking on the telephone for more than a year when the visa applicant disclosed he had feelings for her.  Rather, the sponsor told the Tribunal that she had spoken to the visa applicant once in September 2011 for a really long time and “had a connection”.  She said that she had feelings for him then and “was ready” and “looking forward” and hoping he would have feelings for her too and when “it finally happened” she was really happy.   

7. The Tribunal simply does not accept the sponsor’s evidence regarding the conception and development of the relationship, or the fact that they were in weekly contact for one year prior to agreeing to marry the visa applicant.  The sponsor’s own evidence was inherently inconsistent.  In the Tribunal’s view, this evidence is material to the Tribunal’s consideration and assessment of whether the relationship is genuine and continuing.  The Tribunal has carefully considered the sponsor’s personal circumstances including her claim that she “was emotional”, as well as her claimed history of depression, and the extent to which they may have impacted on the sponsor’s evidence and or might explain the inconsistencies in her own evidence.  But, in the Tribunal’s view, this inconsistency is not explainable due to an individual’s ability to recall an event, or by trauma or other difficulties she has experienced.  There is no reasonable explanation before the Tribunal which might explain why the sponsor did not state in her relationship statement that she and the visa applicant had been speaking on the telephone every week for a year prior to the visa applicant disclosing his feelings to her.  There is also no plausible explanation for why the sponsor might give inconsistent evidence about how much contact she had with the visa applicant before she decided to marry him.  The most likely explanation for this inconsistent evidence, which the Tribunal infers, is that the sponsor has not been truthful and has contrived evidence related to her own relationship history.  Given its materiality to this application, the Tribunal finds this aspect of the sponsor’s evidence to be unreliable and, therefore, lacking credibility.  

8. Further, the Tribunal questioned the parties about their knowledge of each other, their families and the pattern of their lives.  The Tribunal also questioned the parties about their future together in Australia.  Their plans for the future were rudimentary, particularly in regards to the arrangements with respect to the care and support of the visa applicant’s children.  The Tribunal is not satisfied that they have demonstrated a knowledge of each other’s lives and future plans commensurate with a couple in a genuine and ongoing spousal relationship.  In view of the Tribunal’s concerns regarding the sponsor’s credibility and the family involvement in this relationship, the Tribunal is not satisfied on the available evidence that the parties provide each other with companionship or emotional support, or that they see this relationship as long term. 

9. In respect to the nature of the parties’ commitment, the Tribunal has considered the period of courtship, the duration of the relationship, the sponsor’s credibility, as well as the degree of companionship and emotional support they have provided each other.  The Tribunal remains unconvinced that their relationship is not contrived for migration purposes, and is therefore not satisfied that the parties share a mutual commitment to a shared life as husband and wife to the exclusion of all others. 

CONCLUSIONS

1. The Tribunal is satisfied that the marriage is valid for the purposes of the Act as required by s.5F(2)(a).

2. The Tribunal is not satisfied that at the time of application and time of decision the visa applicant and sponsor had 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. They therefore do not meet the requirements of s.5F(2)(b) and s.5F(2)(c) for a married relationship.

3. The Tribunal is not satisfied that at the time of application and time of decision the visa applicant and the sponsor live together or do not live separately and apart on a permanent basis.  Accordingly, they do not meet the requirements of s.5F(2)(d) for a married relationship.

4. The Tribunal therefore finds that at the time of the visa application and the time of decision the visa applicant was not the spouse, within the meaning of s.5F, of the sponsor, who is an Australian citizen and does not meet the requirements of cl.309.211(2) and cl.309.221 of Schedule 2 to the Regulations.

5. For these reasons the Tribunal finds that at the time of application and the time of decision, the visa applicant and sponsor are not in a married relationship within the meaning of s.5F(2) of the Act. 

6. Therefore the visa applicant does not meet cl.309.211 and cl.309.221.

1. Given the findings above, the visa applicant does not satisfy the criteria for the grant of the visa, and the secondary applicants are unable to satisfy the secondary criteria for the grant of the visa.

DECISION

1. The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

Lisa Lo Piccolo
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).