1412312 (Migration)

[2015] AATA 3217

1412312 (Migration) [2015] AATA 3217 (20 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Thi Kim Ngan Nguyen

CASE NUMBER:  1412312

DIBP REFERENCE(S):  CLF2011/222656

MEMBER:Catherine Wall

DATE:20 July 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

Statement made on 20 July 2015 at 12:14pm

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 9 July 2014 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. Ms Thi Kim Ngan Nguyen is a 23 year old citizen of Vietnam. She applied for the visa on 29 December 2011 on the basis of her relationship with her sponsor, Mr Justin Nguyen, a 27 year old Australian citizen. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221(2) because the delegate was not satisfied that at the time of decision the applicant was the spouse of the sponsor.

4. Ms Nguyen appeared before the Tribunal on 12 May 2015 to give evidence and present arguments. The Tribunal conducted a second hearing on 10 July 2015 at which Ms Nguyen, the sponsor Mr Nguyen, and the sponsor’s mother, Belinda Nguyen, gave oral evidence. The Tribunal hearings were conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearings.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether at the time of decision Ms Nguyen is the spouse of the sponsoring partner, Mr Nguyen.

   SPOUSE/DEFACTO (cl.801.221(2))

   Whether the parties are in a spouse or de facto relationship

8. Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who is and Australian citizen and was identified in the Subclass 820 visa application.

9. ‘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?

10. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. On the basis of oral evidence and a copy of a Marriage Certificate, the Tribunal is satisfied that the parties married in Springvale Victoria on 16 December 2011. On the evidence, the Tribunal finds that the parties are 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 spousal relationship met?

11. Mr Nguyen did not attend the first hearing. Ms Nguyen told the Tribunal that she and Mr Nguyen had separated temporarily as a result of Mr Nguyen’s distress following the interview with the Department and the subsequent visa refusal.  The Tribunal heard that Mr Nguyen refused to attend the Tribunal hearing, however Ms Nguyen was adamant that they would reunite. The Tribunal agreed to provide Ms Nguyen with time to provide written evidence from Mr Nguyen post-hearing.

12. On 25 May 2015 the Tribunal received a submission from Ms Nguyen’s representative and letters from Mr Nguyen and his mother, Belinda Nguyen. It is claimed that the parties reunited on 24 May 2015 and are now living in a spousal relationship. The Tribunal strongly tested these claims at hearing and as a consequence is not satisfied that the parties have  ever been in a genuine spousal relationship.

    Nature of the commitment

13. Mr Nguyen corroborated Ms Nguyen’s oral evidence that they separated in January 2015 and lived apart until May 2015 when they decided to give their marriage another try. They state that in May 2015 Ms Nguyen moved into the rental property Mr Nguyen shares with his parents. Mr Nguyen said that they separated because he was very stressed as a result of his work and his anger regarding what he considered to be a very biased interview conducted by the Department.

14. Mr Nguyen told the Tribunal that he intended to attend the Tribunal hearing held on 12 May 2015 however he was sick. The Tribunal notes that this is inconsistent with Ms Nguyen’s evidence that he refused to attend because of his experience in the interview with the Department. It is also with a written submission from Ms Nguyen’s representative dated 11 May 2015 which states that “early this year, due to the psychological impact on him, he has advised his wife that he would withdraw his sponsorship to ‘let go of everything’. Accordingly, he has decided not to accompany his wife to attend the hearing”.

15. When asked if Ms Nguyen has travelled overseas since they returned from their marriage in Vietnam in January 2012, Mr Nguyen said that she has travelled twice: once to see family and once to attend her grandfather’s funeral. Ms Nguyen told the Tribunal that she has travelled only once, for the purpose of attending her grandfather’s funeral. The Tribunal finds that Department movement records indicate that, since her return to Australia in February 2012, she has travelled overseas on only one occasion.

16. The Tribunal also found that Ms Nguyen’s oral evidence that she travelled with Mr Nguyen to Vietnam in January 2012 to be inconsistent with Mr Nguyen’s evidence that they travelled separately. The Tribunal notes that Department movement records show that the parties travelled separately to Vietnam in January 2012 and returned to Australia on different dates.

17. At the hearing the Tribunal invited Ms Nguyen pursuant to s.359AA to comment on, and respond to, information which the Tribunal considered would be a reason or part of the reason for affirming the decision under review. The Tribunal referred to the conflicting evidence given by herself and the sponsor in respect to their overseas travel and to the reasons given for Mr Nguyen’s non-attendance at the first hearing.

18. Ms Nguyen claimed that she has memory problems, and had forgotten that she did not travel to Vietnam with her husband for their marriage celebrations, as that was over 4 years ago. The Tribunal does not find this explanation plausible, as it expects that Ms Nguyen would recall such a significant event. She was newly married and was travelling to celebrate her marriage in Vietnam and to introduce her husband to her family in Vietnam.

19. In regard to whether she had travelled once or twice to Vietnam since 2012, Ms Nguyen said that it may have been once or twice, however she could not recall exactly how many times. The Tribunal also finds this explanation implausible.

20. Ms Nguyen told the Tribunal that there were several reasons that Mr Nguyen did not attend the first Tribunal hearing. She said that he was sick as he gets frequent headaches, that the interview with the department did not go well and he was tired from his night work. The Tribunal notes that Ms Nguyen’s reference to Mr Nguyen experiencing frequent headaches is inconsistent with her evidence at hearing that her husband has no health problems.

21. The Tribunal finds that the above inconsistencies in evidence cast doubt on the parties’ credibility. The Tribunal also finds that these inconsistencies, which relate to what would generally be significant events in a relationship, indicate that the parties do not share personal information in a manner consistent with being in a spousal relationship.

22. While the Tribunal found that the parties’ evidence about their future plans was consistent, it considers that their responses were rehearsed. The Tribunal notes that the parties stated in their written statements dated December 2011 that they are saving to buy a house and have a family.  They reiterated these plans at the Tribunal hearing, however the Tribunal is not persuaded that they have taken any steps to implement these plans. Despite their claim that they have been in a spousal relationship for 3 ½ years, there is no evidence before the Tribunal that they have accumulated savings, acquired joint assets or otherwise established a life together as a couple. This leads the Tribunal to doubt that they have plans for a shared future.

23. The Tribunal has taken Belinda Nguyen’s evidence into account in its deliberations, however it finds that her evidence is not sufficient to overcome the problems in the other evidence before the Tribunal.

24. The Tribunal told Mr Nguyen that it considers that the following oral and written evidence casts doubt on his claimed commitment to Ms Nguyen:

    ·He separated from Ms Nguyen because he was stressed and wanted a break;

    ·He refused to attend the first Tribunal hearing because of  his anger about the Department interview; and

    ·Ms Nguyen’s representative stated in a written submission dated 11 May 2015, that Mr Nguyen appeared reluctant to answer his (the representative’s) calls regarding the first hearing. He said that he went to Mr Nguyen’s home after the hearing to explain things to him, however he was only able to discuss the hearing with Belinda as Justin had just returned home from his night shift and needed rest.

    Mr Nguyen’s response was that he had difficulty communicating with the representative because he works nights and is often tired. Ms Nguyen’s response was that her husband was raised in Australia and has a relaxed “whatever” attitude.  The Tribunal is not persuaded by the parties’ explanations.

25. Section 5F requires the parties to have a mutual commitment to a shared life as husband and wife. The Tribunal finds that there is little evidence that Mr Nguyen is committed to a shared life with Ms Nguyen. While acknowledging that he was upset about the interview with the Department, the Tribunal considers that his subsequent refusal to support Ms Nguyen in her application for review indicates that he was disinterested in the outcome. The Tribunal finds perplexing Mr Nguyen’s written evidence (statement dated 24 May 2015) that after the interview ‘I felt my problem was partly caused by my wife for not being an Australian citizen when I married her”. He further states that ‘the separation was intended to help us focus on the migration issues without stress’. It is unclear how Mr Nguyen intended to help his wife to obtain a permanent partner visa by separating from her. It is the Tribunal’s view that parties in a genuine spousal relationship are generally willing to work through difficult migration processes in order to remain together. In contrast, Mr Nguyen appears to have regarded the migration requirements as an inconvenience, and he has not demonstrated that he is particularly concerned about the outcome for Ms Nguyen.

26. Having considered the available evidence, the Tribunal is not persuaded that at the time of decision Mr Nguyen has a genuine commitment to a spousal relationship with Ms Nguyen.

    Financial aspects of the relationship

27. The parties gave consistent evidence that, since they reunited 6 weeks ago, Ms Nguyen has been financially dependent upon Mr Nguyen as she injured her foot and has been unable to work. Ms Nguyen said that she and Mr Nguyen have a joint bank account but they do not really use it, as Mr Nguyen’s salary is paid into his personal account and he gives her cash as she needs it.

28. The Tribunal notes that the department file contains joint bank account statements and some receipts in the parties’ names for the period 2012 to 2013. There is however no documentary evidence that at the time of decision the parties share financial resources, have joint assets or make joint financial decisions in a manner consistent with being in a genuine spousal relationship.

    Nature of the household

29. The Tribunal finds that the parties’ oral evidence that they are sharing a household at time of decision is supported by oral evidence given by Mr Nguyen’s mother, Belinda. The witnesses’ evidence is that the parties lived with Mr Nguyen’s parents in Skye until January 2015, when Mr Nguyen moved with his parents to a rental property in Carrum Downs and Ms Nguyen moved into shared accommodation. They state that Ms Nguyen moved into the Carrum Downs property in May 2015 where the parties currently live with Mr Nguyen’s parents.

30. The Tribunal finds that the only documentary evidence that the parties share a household at time of decision is a medical invoice and prescription dated 11 June 2015, which provides Ms Nguyen’s address as being the same as Mr Nguyen’s stated Carrum Downs address.

31. While the Tribunal found that the witnesses gave consistent accounts of their household activities and responsibilities, their responses appeared well rehearsed.  On this basis the Tribunal gives little weight to this aspect of the relationship.

    Social aspects

32. The parties told the Tribunal that they have not socialised with any friends for some time. They attribute this to Mr Nguyen’s unsociable work hours and Ms Nguyen’s health problems.  When asked if their friends were aware that they had separated and reunited, Mr Nguyen said that he does not share this type of information with friends. The Tribunal noted that Margaret Miller and Tracy McGuire attested to the parties’ genuine relationship in statutory declarations signed in June 2014. The Tribunal asked Ms Nguyen when she and Mr Nguyen last had contact with Ms Miller and Ms McGuire. She said that it was about one year ago.

33. Ms Nguyen said that she did not disclose her marital breakdown to her parents until May 2015, and that she has since told them that she is back with her husband. When asked when Mr Nguyen last spoke with her parents, Ms Nguyen said that it was a long time ago, probably 6-7 months ago.

34. In the context of the lack of probative evidence of social recognition of the parties’ relationship, the Tribunal gives little weight to the evidence from Belinda Nguyen who claims that the parties live with her and that she can attest that they present as being in a spousal relationship. If the parties had previously socialised as a couple, and been recognised as such by family and friends, the Tribunal expects that people in their social circles would be aware that they had separated and are now reconciled.

35. Having considered the available evidence, the Tribunal is not satisfied that at the time of decision the parties present themselves socially or are viewed socially to be in a genuine spousal relationship.

    Overall assessment

36. The Tribunal is mindful that it must assess the relationship at the time of decision, and that a past temporary separation is not inconsistent with the parties being in a genuine relationship at time of decision. However, there are many aspects of Ms Nguyen’s circumstances which lead the Tribunal to conclude that the parties are not in a genuine spousal relationship at the time of this decision. At the hearing held on 12 May 2015 the parties had been separated for 5 months. At the hearing held on 10 July 2015 they claim to have been reconciled for 6 weeks, however they provided little independent evidence of their spousal relationship. Their evidence on significant aspects of their relationship was inconsistent. Further, the Tribunal finds that Mr Nguyen’s behaviour since the department refused the visa demonstrates a lack of commitment to a genuine and ongoing relationship with Ms Nguyen. It is the Tribunal’s view that the recent reconciliation was contrived for the purposes of obtaining a favourable visa outcome.

37. Having had regard to the financial aspects, the nature of the household, the social aspects and the nature of the persons’ commitment to each other, the Tribunal is not satisfied that these findings together demonstrate that at the time of decision there is a mutual commitment to a shared life as husband and wife to the exclusion of all others, or that the relationship is genuine and continuing. The Tribunal is further not satisfied that the parties live together and do not live separately and apart on a permanent basis. They therefore do not meet the requirements of s.5F for a married relationship.

38. Given these findings the Tribunal is not satisfied that at the time of this decision the applicant is the spouse of the sponsoring partner. Therefore the applicant does not meet cl.801.221(2)(c).

39. Furthermore, the applicant has not claimed, and there is no evidence before the Tribunal, that the applicant meets the alternative criteria in cl.801.221 (2A), (3), (4), (5) or (6).

40. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

41. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

    Catherine Wall
    Member

    
    

    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).