1504187 (Migration)

[2016] AATA 4541

1504187 (Migration) [2016] AATA 4541 (21 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr VAN HOI DANG

VISA APPLICANTS:  Ms THI KIM THANH LE
Mr VAN MINH HOANG TRAN
Mr VAN MINH THANH TRAN

CASE NUMBER:  1504187

DIBP REFERENCE(S):  2014026691

MEMBER:Lisa Lo Piccolo

DATE:21 October 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 21 October 2016 at 12:52pm

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 4 March 2015 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 applicant) applied for the visa on 13 May 2014 on the basis of their relationship with their sponsor, the review applicant. 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 applicant did not satisfy cl.309.211 because the delegate was not satisfied that the relationship between the applicant and the review applicant (the sponsor) meets the definition of spouse in s.5F of the Act.  A copy of the delegate’s decision was provided to the Tribunal by the sponsor.

4. The sponsor appeared before the Tribunal on 5 May 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant via telephone.   Mr Vincent Ly and Xuan Vinh were also appeared at the hearing to give evidence but since both had already submitted a statutory declaration in support of the application and were not proposing to provide evidence other than that contained in their statutory declarations, the Tribunal did not hear from them and instead relies on their statutory declarations. 

5. The sponsor was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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 applicant is the spouse of the sponsor.

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 review applicant 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 review applicant’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.

3. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The applicant and the sponsor were married on 10 January 2014.  The visa applicant and the sponsor submitted a certified copy of their marriage certificate issued in Australia (D.f.83).  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).

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 transfer dated 19 May 2015, telephone records of the sponsor and the applicant, photographs of the applicant and sponsor in Australia and in Vietnam as well as wedding photographs in Vietnam, relationship statement of the sponsor dated 6 May 2014, applicant’s statement of relationship and ex-husband dated 12 January 2014, wedding invitation, certificate of marriage, temporary stay declarations, airline tickets and boarding passes, untranslated receipts, untranslated viber records for the period January-April 2016, as well as numerous statutory declarations in support of the relationship.

The financial aspects of the relationship

1. The sponsor told the Tribunal that the applicant does not need money as she is managing fine.  He said she owns a house in Vietnam.  The documents before the Tribunal suggest that the sponsor has sent money to the applicant on one occasion on 19 May 2015 in the amount of $1000.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.

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 Tribunal notes the delegate’s concerns as recorded in the decision record regarding the limited amount of time the applicant and the sponsor have spent together since they married, and the lack of cohabitation evidence.  However there is no other evidence that the parties have stayed together during the sponsor’s travel to Vietnam.  

2. The applicant and sponsor both gave evidence that they have lived together in Vietnam during the sponsor’s stays in Vietnam.  The Tribunal acknowledges that a hotel receipt for the period between 25 and 28 July 2013 in the names of the applicant and sponsor was submitted to the Department.  A temporary registration declaration was also submitted to the Tribunal for the period 17 to 24 February 2015. 

3. The Tribunal notes that the sponsor’s son David Dang stated in his statutory declaration made on 30 April 2016 that there the applicant lived with him and his father “for a while” when she was visiting Australia.  He makes no reference to when this was or how long she stayed with them.  He also provides no evidence as to the living arrangements or the nature of the household.  The Tribunal places some weight on Mr Dang’s statutory declaration. 

4. Both the sponsor and the applicant gave evidence that the sponsor has been to visit her in Vietnam on 3 occasions since they were first introduced on the telephone in March 2013.  The Department’s movement records indicate that the sponsor was in Vietnam between 22 July 2013 and 5 August 2013, 7 March 2014 and 24 March 2014, 17 February 2015 and 3 March 2015 and most recently between 21 December 2015 and 11 January 2016.  The applicant and sponsor told the Tribunal they spent the majority of these trips together and even did some site seeing in Da Lat and Vung Tan.  The applicant was in Australia between 20 December 2013 and 11 January 2014.  Accepting this to be the case, the applicant and the sponsor have spent a total of 64 days together over the past 3 ½ years.  The Tribunal places some weight on the temporary declaration.

5. The applicant and sponsor both gave evidence that they would live together in Australia.  For the reasons below, the Tribunal does not accept this.

6. The Tribunal has had regard to the representative’s submission that temporary declarations were submitted to the Department for travel in July 2013 and March 2014 although these do not appear on the Department file.  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 applicant is the spouse of the sponsor. 

The social aspects of the relationship

1. The large bulk of the evidence submitted to the Tribunal was photographs.  87 pages of photographs were of the wedding celebration in Vietnam, 57 pages were photographs in Vietnam and 4 pages were photographs of the applicant’s trip to Australia in 2013.  A large number of these photographs are of the applicant and the sponsor although some photographs are identified as being with “friends of the applicant” or relatives.  There are some photographs of the applicant and the sponsor with the applicant’s children.  The Tribunal places some weight on the photographs.

2. Tri Gia Luong submitted a statutory declaration made 29 April 2016.  In that declaration, he declares that he knows the sponsor because he is a customer at his restaurant.  He said that he met the applicant at his restaurant when she was visiting the applicant in Australia.  He says he believes the relationship to be genuine based on his observations of the way they talk to each other and take care of each other.  The Tribunal places some weight on his evidence.

3. The Tribunal has also had regard to the statutory declaration made on 29 April 2016 by Toan Gia Luong.  Mr Luong declares that he knows the sponsor from when he had a restaurant in Footscray and the sponsor was a customer.  He declares that he has not met her but he knows they remain in close contact and have been together for some years.  He believes their relationship is genuine and continuing because their love is strong even though they are living in different countries.  The Tribunal places some weight on this evidence.

4. Vinh Xuan Tran made a statutory declaration dated 29 April 2016.  He declares that he has known the sponsor for some years and they are now friends.  He said the sponsor is his regular customer and his dance teacher.  He declares that he met her when she was visiting Australia and they both went to his restaurant.  He says he believes the relationship is genuine and continuing because it has been going a long time and the sponsor has returned to visit the applicant many times.  The Tribunal places some weight on the statutory declaration. 

5. Mr Vincent Ly made a statutory declaration dated 27 April 2016.  He says that he and the sponsor are work colleagues and he has met the applicant in Vietnam.  He said he delivered some gifts to her in Vietnam and met her and her children, and again spent time with her when she was visiting Australia.  He says the sponsor loves and treats the children like his own and he has no doubt about the relationship.  He declares his belief that the relationship is genuine and continuing.  The Tribunal places some weight on this evidence.

6. As mentioned above, one of the sponsor’s sons, David Dang submitted a statutory declaration made on 30 April 2016.  He said he has spoken to the applicant on the telephone and spent time with her when she was visiting Australia and stayed with them for a while.  He said he was devastated that he could not attend his father’s wedding in Vietnam since he was busy working but looks forward to seeing the applicant again when she comes to Australia along with his step brothers.  He does not declare his belief that the relationship is genuine and continuing.  The Tribunal places some weight on this evidence.

7. The Tribunal notes in passing that the statutory declaration given by Mr David Dang was the only evidence provided by anyone in either the applicant or the sponsor’s family. 

8. The delegate had serious concerns that the relationship is socially recognised.  In particular, the delegate was troubled by the fact that the wedding did not take place at the applicant’s home or village (but rather at a maternal aunts), there was no evidence that the applicant had met the sponsor’s mother and siblings, the matchmaker or any of the sponsor’s best friends and colleagues when she was in Australia, the applicant’s children did not attend the wedding, nor did any of the sponsor’s relatives on the father’s side of the family.

9. The Tribunal is also troubled by the lack of immediate family at the wedding celebration.  The applicant’s children were not there, nor were the applicant’s mother or siblings.  In addition, whilst the applicant’ maternal aunt and her family was present and an aunt of the sponsor, no other family members were there despite there being 120 guests at the wedding.  The sponsor said the wife’s aunty and family made up about 20 people, plus about 100 friends and other people from his side.  The 100 people were friends and children and grandchildren.  The applicant said her family lives in Hue which is too far from Saigon plus her mother is old and all her siblings had to work so coming to the wedding is a very difficult trip for them.  The Tribunal does not accept this explanation.  The Tribunal finds it implausible that not one of the applicant or sponsor’s family members in Vietnam (aside from the aunt in Saigon) could attend the wedding.  The Tribunal places significant weight on their absence as an indicator that the marriage is not socially recognised as a genuine spousal relationship.  The Tribunal places significant weight on the absence of the applicant’s mother and siblings, and any member of the sponsor’s family.

10. In so saying, the Tribunal does acknowledge that the applicant and the sponsor both gave evidence that they have visited the applicant’s mother and siblings after the wedding.  There is no other independent evidence before the Tribunal to confirm this.  The Tribunal places limited weight on this evidence.  The Tribunal is also troubled by the lack of contact between the applicant’s children and the sponsor.  There is evidence to suggest that the sponsor has met one son (photographs) but not the other.

11. In relation to the applicant’s visit to Australia, whilst the Tribunal acknowledges the statutory declarations referred to above and the 4 pages of photographs of the applicant and sponsor together in Australia, the tribunal is concerned by the limited nature of the evidence given that the sponsor’s entire family lives in Australia (aside from one brother in America) as does his mother and his children and the fact that the applicant was in Australia for more than 3 weeks.  The applicant and sponsor both said that the applicant met his mother although they have no photographic evidence of this.  Although the applicant told the Department she met the sponsor’s siblings in Australia, both the applicant and sponsor told the Tribunal that they did not meet or spend any time with any of the siblings.  The sponsor said one sister is in jail and his other siblings were unavailable because it was the holiday season and they were away.  None of the sponsor’s family attended their wedding registration including the sponsor’s only son and they did not host any celebration to commemorate the wedding.   This is troubling.  The evidence as a whole is in any event insufficient, especially when weighed against the other evidence, to support a finding that the relationship is socially recognised by family.

12. Considering the evidence of social aspects of the relationship as a whole, 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 ½ years and the applicant and sponsor have been married for almost 3 years.  The Tribunal has taken into account the parties’ respective ages, educational and family backgrounds and life experience. 

2. The Tribunal notes that sponsor has returned to Vietnam since the marriage.  The evidence before the Tribunal is that the applicant stayed at the same address as the sponsor on at least one occasion.  There are also photographs of the parties together evidencing that they have spent time together in Vietnam.   

3. 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 that the applicant and sponsor maintain some telephone contact.  Many of the telephone records submitted to the Tribunal however indicate that the communications between the parties last between seconds and minutes. They also do not cover the claimed period of contact.

4. The Tribunal is particularly concerned by the absence of the family at the wedding and the relationship.  Although the Tribunal has given some weight to the statutory declaration of the sponsor’s son, Mr David Dang, the Tribunal is concerned that despite being in a relationship for 3 ½ years, the applicant and the sponsor have otherwise had minimal contact with each other’s immediate family in Australia and Vietnam.  In fact, the applicant has never met the sponsor’s siblings and met the sponsor’s mother twice.  The sponsor too has only met the applicant’s family in Hue once.  The Tribunal is concerned that this is because his family does not regard their marriage as genuine.

5. The Tribunal is also troubled by the circumstances concerning the marriage between the applicant and the sponsor in Australia.  On all accounts, the applicant was not aware that they were getting married and the sponsor organised everything as a “surprise”.  None of the family members were aware of the wedding (either in Vietnam or Australia) and no family members attended.  Not the sponsor’s mother, his siblings or his son.  And yet, in the applicant’s relationship statement, she said that their families supported their decision to marry.  The Tribunal finds this implausible since no family members had met either of the couple and were not aware of the marriage when it took place.  In addition, at the time the parties married, they had spent less than 2 weeks together after their initial face to face meeting.  And, the applicant divorced her first husband three months after she was introduced to the sponsor by her long term friend, Ms Huong.  The rapid development of this relationship, coupled with the overlap between the end of the applicant’s marriage to her first husband and the commencement of her relationship with the sponsor as well as the lack of family involvement in the relationship raises concerns that the parties are not committed to the relationship and their relationship was devised for migration purposes only. 

6. 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 very general in nature.  Based on the available evidence, the Tribunal is not satisfied that the parties provide each other with companionship or emotional support, or that they see this relationship as long term. 

7. In respect to the nature of the parties’ commitment, the Tribunal has considered the period of courtship, the duration of the relationship, 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(2) and cl.309.221.

7. Given the findings above, the applicant does not satisfy the criteria for the grant of the visa.  It follows that the secondary applicant is unable to satisfy the secondary criteria for the grant of the visa. 

DECISION

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

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).