1507544 (Migration)

[2015] AATA 3380

1507544 (Migration) [2015] AATA 3380 (31 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Thi Thu Doan

VISA APPLICANTS:  Mr Hung Nguyen
Mr Phuc Nguyen Nguyen

CASE NUMBER:  1507544

DIBP REFERENCE(S):  2012031051P

MEMBER:Kira Raif

DATE:31 August 2015

PLACE OF DECISION:  Sydney

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

Statement made on 31 August 2015 at 10:35am

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 20 May 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 visa applicant) is a national of Vietnam, born in April 1977. He applied for the visa on 6 November 2005 on the basis of his relationship with the sponsor, the review applicant. The application includes the visa applicant’s child. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because the delegate was not satisfied that the visa applicant was the spouse of the sponsor. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 12 August 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The review applicant was represented in relation to the review by her registered migration agent.

4. The review applicant nominated several witnesses to give oral evidence. The Tribunal has considered the request but decided not to take oral evidence from such witnesses because they have provided written statements to the Tribunal and the Tribunal accepts that they are aware of the relationship and believe it to be genuine.

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

   Relevant law

6. At the time the application was made, 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.

7. 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.

8. ‘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.

   Are the parties validly married?

9. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. When making the application, the applicant provided a copy of the marriage certificate showing that the marriage was registered in October 2014. There is nothing before the Tribunal to indicate that the marriage was not a valid one On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

   Are the other requirements for a spousal relationship met?

10. The Tribunal acknowledges that a substantial amount of documentary evidence has been presented with the application and to the Tribunal, which seeks to address the various aspects of the relationship. However, such evidence does not satisfy the Tribunal that the relationship is that of spouses or is a genuine one. Such evidence does not overcome the Tribunal’s concerns noted elsewhere. The Tribunal is of the view that if the relationship were not a genuine one, it would still be possible to prepare, or obtain, a substantial amount of evidence of the kind that has been presented with application, such as the phone bills, letters and emails, photographs and evidence of joint activities, overseas travel and statements from third parties. In the Tribunal’s view, such evidence may be available whether or not the parties are in a genuine relationship and whether or not both have commitment to such a relationship. That is, the fact that the parties have taken steps to obtain such evidence does not necessarily reflect on the nature of their relationship. It may equally reflect on their commitment to prepare evidence that the parties perceive as being necessary to show in a spouse case to achieve a favourable outcome. More is needed to satisfy the Tribunal that the relationship is genuine and that there is a genuine commitment to the relationship. The parties have not done that.

11. The Tribunal has had regard to all the circumstances of the relationship. With respect to the financial aspects of the relationship, there is ample evidence before the Tribunal to indicate that the sponsor has been sending money to the visa applicant. The Tribunal accepts that the sums in these transfers are substantial. Despite that, the Tribunal is not convinced these transfers reflect the sharing of resources. The review applicant informed the Tribunal in oral evidence that of the funds she sends, only $100 - $200 are sent from her and the rest of the funds are sent from his relatives in Australia and they pool the money to save on transfer costs. The visa applicant also informed the Tribunal that some of the money being transferred is given to the visa applicant’s relatives in Vietnam. That is, the transfers relate to the funds from the review applicant and the visa applicant’s family and for the use of the visa applicant and the review applicant’s family. In such circumstances, the Tribunal cannot be satisfied that the transfers reflect the funds sent from the review applicant to the visa applicant or that the funds represent the parties’ decision to pool their resources.

12. The Tribunal also notes there were substantial differences in the parties’ evidence about their finances which the Tribunal considers problematic.

    a.The review applicant said her mortgage was $265,000. The visa applicant said it was $300,000. The review applicant said her repayments were $860 per fortnight. The visa applicant said $900 per fortnight. The review applicant said the visa applicant’s relatives contribute $200 in rent ($100 from each of the siblings and nothing from the mother). The visa applicant said they contribute $300 per week in rent.

    In her post-hearing submission to the Tribunal the review applicant stated that both she and the sponsor provided incorrect information as she had recently refinanced the loan and the repayments had changed frequently. The review applicant provided additional information about the payments. The Tribunal’s concern, however, is not with the amounts being repaid but with the fact that the parties lack knowledge of these matters.

    As for the contributions from the family members, the review applicant suggested that they used to be $300 but have now dropped to $200. Again, the Tribunal’s concern is not with the amounts but the parties’ knowledge of each other’s circumstances.

    b.The Tribunal asked both parties why there were such significant transfers. The review applicant informed the Tribunal she sends money to the visa applicant to cover his living expenses and tuition fees. The visa applicant suggested that some of the funds sent by the review applicant go to her relatives. The review applicant made no mention in her explanation to the Tribunal of the money going to her relatives.

    In her declaration to the Tribunal the review applicant explained that part of the funds is used by the visa applicant and his son and part of the funds is used by her family. The Tribunal is concerned that the full explanation was not offered by either party in oral evidence. The Tribunal is also concerned that by failing to mention her family’s benefit in oral evidence to the Tribunal, the review applicant sought to exaggerate the amount of financial support she provides to the visa applicant.

    c.The review applicant said that the money she sends to the visa applicant is her own funds and also the funds from his mother and sister, to save the transfer costs. The visa applicant repeatedly informed the Tribunal that the money is only from the review applicant and nobody else contributes to the funds. He appears to have been unaware that his family contribute to the funds being sent. The review applicant subsequently suggested that the visa applicant misunderstood the question but the Tribunal is mindful that this question was asked several times and in different ways, the Tribunal is not satisfied it was misunderstood.

13. Having regard to the parties’ evidence, the Tribunal is not satisfied that the applicant and the sponsor pool their financial resources. The Tribunal is not satisfied that they have joint ownership of any assets, joint liabilities or legal obligation owed to each other.

14. The Tribunal has considered the social aspects of the relationship. The Tribunal acknowledges that there is a substantial amount of evidence from third parties about the relationship between the applicant and the sponsor, as well as photographs and other materials. The Tribunal accepts, having regard to that evidence, that the parties have presented themselves to other people as being married. The Tribunal accepts that the parties have undertaken joint social activities together. The Tribunal accepts that in the opinion of friends and acquaintances, the parties are in a genuine relationship and committed relationship.

15. The Tribunal has considered the nature of the household. The Tribunal acknowledges that the review applicant provided several statements from the authorities in Vietnam showing that she had registered her residence at the visa applicant’s home. The Tribunal accepts that the review applicant made many trips to Vietnam and that she has spent, in total, a significant period of time in Vietnam. The Tribunal is prepared to accept that the review applicant had lived at the visa applicant’s home and that on those occasions, the couple had established a joint household.

16. The parties claim in various written submission that there is a close relationship between the review applicant and the visa applicant’s son. However, when questioned about the visa applicant’s children, the Tribunal found the review applicant’s answers to be vague and evasive. The review applicant did not appear to have much knowledge about the visa applicant’s children, for example, she could not state which schools they went to and was confused about the age of the second child. The review applicant suggested she sent money towards the son’s schooling expenses yet she did not know how much the tuition fees or other school fees were. The Tribunal is not satisfied that there is a close relationship between the review applicant and the visa applicant’s children and the Tribunal is not satisfied that the parties have joint responsibilities for care and support of the children.

17. The Tribunal has considered the nature of the parties’ commitments to each other. The Tribunal gives considerable weight to the fact that the relationship existed for several years and is a long term one. The Tribunal places weight on the fact that the review applicant made many trips to Vietnam and the parties had spent considerable time together. There is ample photographic evidence of the parties’ joint activities, as well as evidence of their communication. All these matters suggest there is mutual commitment to the relationship.

18. Against these considerations, the Tribunal notes that there were deficiencies in the parties’ evidence that remain of concern to the Tribunal. For example, the Tribunal has formed the view that the parties’ evidence about the development of their relationship has been less than truthful.  

    a.The review applicant informed the Tribunal the visa applicant’s previous relationship ended in 2010. The visa applicant stated on the application form the relationship ended in divorce in January 2012. The Tribunal also notes that the review applicant referred to a de facto relationship while the application form refers to a marriage. The review applicant explained to the Tribunal that another person assisted the visa applicant with the application form and that person was not an immigration specialist. In the Tribunal’s view, one does not need to be an immigration specialist to be able to correctly state one’s marital status or the date of the divorce. The Tribunal is not satisfied that the information on the application form correctly reflects the visa applicant’s circumstances. In her subsequent submission to the Tribunal the review applicant confirmed that the information on the application form is incorrect.

    b.The Tribunal considers the review applicant’s evidence concerning the development of the relationship to be unconvincing. The review applicant’s oral evidence to the Tribunal is that she and the visa applicant spent minimal time together in 2008, had virtually no contact with each other between 2008 and 2010 (only when the visa applicant called his family in Australia) and when she travelled to Vietnam in 2010, they only spent one day together purely out of courtesy and had no feelings for each other at all. The Tribunal is mindful that this is completely inconsistent with the statutory declaration the sponsor provided with the primary application in which she stated that the visa applicant cared about her and had special feelings towards her. The sponsor referred in her written declaration to the couple being close to each other and that she was touched by the applicant’s honesty. In the post-hearing submission the review applicant stated that she explained her feelings in the earlier statutory declaration. The Tribunal is of the view that the initial statutory declaration does more than that, as it seeks to represent a closer relationship between the applicant and the sponsor than what the review applicant now claims existed.

    The review applicant subsequently informed the Tribunal that before she left Vietnam in January 2010, she and the visa applicant expressed feelings for each other. That contradicts her earlier evidence that she only spent one day with the visa applicant’s family and they had no feelings towards each other at the time. The review applicant then said that she told the applicant she liked him because he was kind and because of the way he spoke but she said they did not express any feelings for each other. The review applicant expressly confirmed to the Tribunal that she and the visa applicant did not express their feelings for each other during that visit. The Tribunal notes that in his written statement, the visa applicant stated that a few days before the sponsor left Vietnam, he expressed his feelings to her. The review applicant informed the Tribunal that was not true because they did not see each other a few days before she left and he only expressed his feelings after she returned to Australia. She confirmed in her written submission to the Tribunal that the visa applicant’s evidence was incorrect.

    c.The Tribunal also finds it unconvincing that the couple could have developed feelings for each other, and express those feelings, having only spent one day in each other’s company.

    d.The review applicant informed the Tribunal that she introduced the visa applicant to her family as a friend during her August 2011 visit to Vietnam and as a boyfriend during the March 2012 visit. The review applicant reiterated these claims in her post-hearing submission to the Tribunal. In his written statement which accompanied the primary application the visa applicant said that during the August 2011 the sponsor introduced him to her family and they were happy and agreed to the relationship. When the Tribunal pointed that apparent inconsistency to the review applicant, her evidence changed and she said she introduced the visa applicant as a boyfriend or someone she wanted to get to know better. In the Tribunal’s view, that is not consistent with the visa applicant’s written evidence that by August 2011 the sponsor‘s family agreed to the relationship.

19. Having regard to these deficiencies, the Tribunal has formed the view that the parties did not give truthful evidence about the development of their relationship.

20. There were other inconsistencies in the parties’ oral evidence to the Tribunal which cause the Tribunal to find that the parties have not been truthful. These are set out below.

    a.The review applicant informed the Tribunal the visa applicant has moved to his mother’s house, where he lives now, after his mother came to Australia,. Prior to that his brother lived with his mother at that home but the visa applicant lived elsewhere. The visa applicant informed the Tribunal that he has been living at that place since he was a child. In the post-hearing submission the review applicant explained that the visa applicant lived at his mother’s home before he married and moved back after the mother came to Australia. The review applicant referred to various documents relating to his residence. That does not explain why the visa applicant stated in his oral evidence to the Tribunal that he had been living at that home since he was a child and he failed to mention the substantial period of residence elsewhere.

    b.The review applicant informed the Tribunal she never met the visa applicant’s younger son. The visa applicant said she met him a few times and gave him some toys. The review applicant explained in her post-hearing that she never met the younger son and the visa applicant thought the question was about the older son. The Tribunal’s question was however relating to the younger son and not the older son.

    c.The review applicant informed the Tribunal that during her 2008 visit to Vietnam she saw the visa applicant about four times. The visa applicant said during that visit they saw each other about ten times. The review applicant subsequently explained that the visa applicant was referring to all the visits she has made since 2008, however, the Tribunal’s question was specifically directed to the 2008 visit.

    d.The review applicant informed the Tribunal that during her visit to Vietnam in January 2010 she spent one day with the visa applicant and they did not spend any other time together. The visa applicant said they saw each other on five or six occasions during that trip. The review applicant said they spent the day sightseeing. The visa applicant said they went out and had meals together. The visa applicant expressly confirmed to the Tribunal that he was referring to the January 2010 trip. In her post-hearing submission the review applicant explains that they did spent one day together but did many things on that day. While that may be the case, the Tribunal does not accept that spending an entire day together, even a busy day, could be referred to as seeing someone on five or six occasions.

    e.The review applicant informed the Tribunal that since she left Vietnam in January 2010, she spoke to the visa applicant about once or twice a week. The visa applicant said they had daily contact on the landline, and also through Viber and mobile phone. The review applicant subsequently suggested the visa applicant was confused and outlined the different types of communications the parties had.

    f.The visa applicant said the couple expressed love for each other in February 2012. The visa applicant suggested they started to love each other around August 2011. The review applicant said they spoke about their love for each other around April – May 2010, three to four months after she returned to Australia from Vietnam. The review applicant subsequently informed the Tribunal she was incorrect stating they spoke of their love in 2010.

    g.The review applicant informed the Tribunal that she introduced the visa applicant to her family in August 2011 as a friend and in March 2012 as a boyfriend. The visa applicant initially stated he was introduced to the sponsor’s family in February 2012. He then said he met the review applicant’s sister at the wedding in 2008, he saw her sister again in 2010 and then met the family in February 2012. The visa applicant then said that he also met the review applicant’s family in 2011. The Tribunal has formed the view that the visa applicant has not been truthful in his evidence. The visa applicant said the he was formally introduced to the sponsor’s family as a boyfriend in February 2012.

    h.The review applicant informed the Tribunal that the visa applicant never spoke to her brother in Vietnam on the phone but they spoke to each other in person. The visa applicant said that he sometimes speaks to that brother on the phone. The review applicant suggested her answer was incorrect.

    i.The Tribunal questioned the parties about the visa applicant’s future employment in Australia. The review applicant suggested he will find a job in a bread shop or he will work at other places, for example on the farm. The visa applicant said his wife might teach him to work in a nail salon or he will do factory work or anything else. The review applicant subsequently explained the future employment plans but the Tribunal’s concern is not with what the visa applicant might do in Australia but rather with the degree of the parties’ communication about these matters. The Tribunal is not satisfied the parties have discussed these matters.

1. The review applicant suggested to the Tribunal that her husband is not well educated and would have difficulty interpreting between Vietnamese and English. She claims both she and the visa applicant were nervous. The Tribunal notes that there was no need for the visa applicant to do any interpreting. The visa applicant was assisted by a professional interpreter and the applicant spoke in his native language. The Tribunal does not consider that the visa applicant’s lack of English is the reason for the inconsistencies specified above. The review applicant also informed the Tribunal her husband misunderstood the questions. The Tribunal considers that statement to be odd, given that the review applicant has not had the opportunity to speak to the visa applicant by that time and would not know the reason his answers were inconsistent. The Tribunal notes that in relation to each of the inconsistencies, the Tribunal posed its questions more than once and, whenever possible, in different ways, to ensure the applicant’s understanding of the question. The Tribunal is not convinced that the discrepancies are the result of the visa applicant’s misunderstanding of the questions.

2. The Tribunal acknowledges that much of the parties’ oral evidence was consistent and both the visa applicant and the review applicant displayed good knowledge with respect to some circumstances of their lives and their relationship. However, having regard to the concerns noted above, the Tribunal cannot be satisfied that the parties had not simply memorised that information.

3. Overall, the Tribunal acknowledges the substantial amount of documentary evidence that has been provided throughout the processing of the application. The Tribunal acknowledges that the relationship has been ongoing for a number of years and the Tribunal accepts that some of the aspects of the relationship suggest it is a genuine one. The Tribunal also places weight on the fact that the parties are less familiar with other aspects of each other’s circumstances. The Tribunal has formed the view that they had not been truthful in some of their evidence and the Tribunal has formed the view that the inconsistencies and deficiencies specified above reflect their lack of credit.

4. Having regard to the totality of the parties’ circumstances, the Tribunal is not satisfied that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others. The Tribunal is not satisfied the relationship between them is genuine and continuing. Given these findings the Tribunal is not satisfied that at the time the visa application was made and the time of this decision the parties were in a spousal relationship. The Tribunal is not satisfied the visa applicant meets cl. 309.211(2). There is nothing to suggest that the applicant meets the alternative criterion in cl. 309.211(3). Therefore the visa applicant does not meetcl.309.211 and cl.309.221

   Conclusion

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

   DECISION

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

   Kira Raif
   Senior Member