1509664 (Migration)

[2016] AATA 3003

1509664 (Migration) [2016] AATA 3003 (4 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Kim Loan Nguyen

VISA APPLICANT:  Mr Trung Thien Mai

CASE NUMBER:  1509664

DIBP REFERENCE(S):  OSF2014027714

MEMBER:Christine Kannis

DATE:4 January 2016

PLACE OF DECISION:  Perth

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

Statement made on 04 January 2016 at 7:27am

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 2 July 2015 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 5 September 2014 on the basis of his relationship with his 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). Relevant to this matter the primary criteria include cl.309.211 and cl.309.221.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309. 211 because he was not satisfied that the visa applicant was in a genuine and continuing spousal relationship with the review applicant.

4. Prior to the hearing the Tribunal was provided with a written submission from the review applicant’s migration agent and additional documentation in support of the application including statutory declarations made by the review applicant made on 20 December 2015 and by the visa applicant.

5. The review applicant appeared before the Tribunal on 21 December 2015 to give evidence and present arguments. The Tribunal received evidence from the visa applicant by telephone.

6. The Tribunal also received evidence by from the review applicant’s brother-in-law, Mr Mai Trung Thao (by telephone) and from Mr Duc Tong Huu and Mrs Khen Tran.

7. The Tribunal was assisted by an interpreter in the Vietnamese language.

8. The review applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Whether the parties are in a spouse or de facto relationship

10. The issue in the present case is whether the relationship between the visa applicant and the review applicant meets the definition of “spouse” in section 5F of the Act.

11. Section 5F 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.

12. Clauses 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. The Tribunal had regard to a certified copy of a passport issued in Australia in the name of the review applicant. Accordingly the Tribunal accepts that at the time of the application, the review applicant was an Australian citizen and met the requirements of cl.300.211.

13. The background to this case is drawn from the written statements and oral evidence provided to the Tribunal and is as follows:

    ·The review applicant and the visa applicant met in February 2008 in Vietnam at the visa applicant’s brother’s funeral.

    ·Following the funeral they had coffee with the widow. She was also a friend of the review applicant.

    ·In January 2009 the review applicant attended her father’s funeral in Vietnam and her friend and the visa applicant attended also and once again they had coffee together following the funeral.

    ·The review applicant returned to Vietnam for extended periods in 2010 and 2012. In a statutory declaration made on 6 August 2014 the review applicant said that when she returned to Vietnam in 2010 and 2012 she would go out shopping and for dinner with the visa applicant. In a declaration made 1 August 2014 the visa applicant made similar statements. Both parties also said they kept in telephone contact when the review applicant returned to Australia. In an interview with the Department in 9 April 2015 the visa applicant said he met with the review applicant in February 2010 and three times in 2012.

    ·The written submission and the statutory declarations provided by the parties prior to the hearing sought to correct the information provided in the statutory declarations they previously in 2014. The written submission and the recent statutory declarations stated that the parties had contact with each other in 2008 and 2009 and that they had no contact again until April 2013 when the review applicant telephoned the visa applicant from Australia.

    ·From April 2013 the parties kept in regular contact by telephone or on Viber.

    ·In her statutory declaration made on 6 August 2014 the review applicant said that the visa applicant proposed marriage in September 2013 and said she was not surprised and was very happy. In his statutory declaration made on 1 August 2014 the visa applicant in September 2013 said he proposed marriage and said that the review applicant accepted his proposal. In their recent statutory declarations both parties said the proposal was in November 2013. This is consistent with the visa applicant’s response during an interview with the Department on 9 April 2015 in which he said that he was only kidding in relation to the September 2013.

    ·The parties held a wedding on 14 January 2014 and the marriage was registered on 4 June 2014.

    Are the parties validly married?

14. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The parties provided evidence of a Certificate of Marriage as extracted from the Marriage Registration Book of the Socialist Republic of Vietnam dated 4 June 2014.

15. A wedding invitation was also provided indicating the parties’ wedding ceremony was held on 14 January 2014.The Tribunal was provided with photos of the parties which appeared to show them at the wedding ceremony and later at the reception.

16. Both parties have previously been married and the review applicant provided evidence of dissolution of her previous marriage in 2002. A copy of a Divorce Order under the Family Law Act 1975 showed that the divorce was finalised on 19 March 2002.

17. The visa applicant provided a document dated 29 September 1994 which indicated that it was a decision recognizing that the visa applicant and his former wife had consented to a divorce.

18. On the basis of the written and oral evidence before it, and in the absence of any contrary evidence, the Tribunal concludes that the marriage satisfies the requirements for a valid marriage for the purpose of the Act as required by s.5F(2)(a).

    Commencement of relationship

19. The review applicant told the Tribunal that the statements in her statutory declaration made on 6 August 2014 saying that when she visited Vietnam in 2010 and 2012 she met up with the visa applicant and they went out for dinner or went sightseeing were a “mistake”. The Tribunal asked her why she made those statements to which she said that she realised that without having contact with the visa applicant earlier than April 2013, it would be difficult to prove their relationship. She said she wanted to provide information that there was a connection between them. The visa applicant provided similar evidence in this regard.

20. The Tribunal noted that the visa applicant also provided untruthful information regarding the date of commencement of the relationship during an interview with the Department on 9 April 2015.

    Proposal

21. The review applicant told the Tribunal that the visa applicant proposed to her on two occasions, firstly in September 2013 and later on 11 November 2013. She said she did not accept the first time because she was “shy”. The Tribunal asked her what she meant by saying she was shy. She said that they had not talked about marriage prior to September 2013. The Tribunal referred her to a letter dated 24 August 2013 she wrote to the visa applicant and said, “For me, I miss you so much and wish you good health all the time so that you can get married to and live with me for life”.

22. The review applicant then said that they talked about marriage in August 2013, that the discussion was formalised in September 2013 and that she accepted the proposal in November 2013.

    Are the other requirements for a spousal relationship met?

    Financial aspects of the relationship

23. In her statutory declaration made on 6 August 2014 the review applicant said that she and the visa applicant shared finances. She told the Tribunal that when she is in Vietnam she buys the visa applicant gifts and they share day to day expenses. She said she also sends him money from Australiad to pay for translation of documents.

24. The review applicant told the Tribunal that she is employed on a casual basis and in 2014 her annual income from employment was $5,000. She said that she lives rent free with friends and has lived with them since 2000. She pays for electricity, gas and water. The review applicant said she is also in receipt of newstart allowance from Centrelink and she receives food and petrol as repayment for assisting with the care of a paralysed woman.

25. The visa applicant in a declaration dated 1 August 2014 said that they share finances and that when the review applicant is in Vietnam they each pay for expenses at different times. He said the review applicant sent him money to enable him to post his documents to Australia for the partner visa application.

26. Documentary evidence was provided of money transfers from the review applicant to the visa applicant made during the period June 2014 to January 2015 and in  September 2015.

27. The review applicant told the Tribunal that she and the visa applicant have no joint assets.

28. The Tribunal finds the review applicant has provided financial support to the visa applicant, primarily for translation of documents and that the parties shared day to day expenses when the review applicant was in Vietnam. Given that the parties live in different countries and have not had an opportunity to establish a household, the Tribunal placed little weight on this factor as an indicator of a genuine and continuing spousal relationship.

    Nature of the household

29. In her statutory declaration made on 6 August 2014 the review applicant said that after the wedding in Vietnam they lived at her sister’s home for a few months and she helped with the cooking and cleaning. She said they then moved into the visa applicant’s family home where she did all the cooking and cleaning. In her statutory declaration made on 20 December 2015 the review applicant said that after the wedding they lived in the visa applicant’s home for a month and then stayed with her mother and then they went to stay with her sister.

30. The Tribunal asked the review applicant to clarify her earlier statement of 6 August 2014 when she said that after the wedding they lived at her sister’s home for a few months and then went to the visa applicant’s home. She said that her earlier statement was a mistake.

31. The visa applicant in his declaration dated 1 August 2014 said that when they lived together the review applicant did all the cooking and cleaning and he helped if he wasn’t busy. He said they lived at the review applicant’s sister’s home for two to three months after their wedding and then they lived at his home.

32. In the interview on 9 April 2015 the visa applicant said that after their wedding they lived at his house for a month and then they moved to the review applicant’s sister’s house and her mother’s house before the visa applicant returned to Australia. In the interview the visa applicant said that when they lived together in Vietnam in 2014 the review applicant cooked for him and he did the housework.

33. In the recent statutory declarations provided by the parties they said that following their wedding they lived at the visa applicant’s brother’s home for a month and then went to stay with the review applicant’s mother for a few days and then stayed at the review applicant’s sister’s home.

34. The review applicant has returned to Vietnam three times during 2015 and is due to travel to Vietnam again on 23 January 2016. She said that during her visits in 2015 she has lived in the home the visa applicant shares with his brother. She said she cleaned the visa applicant’s room, cooked for him and folded his clothes during those visits.

35. The parties have lived together for a period of five months from January to June 2014 and for a total period of nine weeks during 2015.

36. Given the very limited time that the parties have shared a home, the Tribunal placed little weight on this factor.

    Social aspects of the relationship

37. A voluminous number of photographs were provided to the Tribunal of the parties’ wedding morning and evening wedding celebrations on 14 January 2014. Numerous photographs were provided of the parties during the review applicant’s visits to Vietnam in February/March 2015 and April 2015. The photographs included images of not just the parties but also of the parties with other people.

38. In her statutory declaration made on 6 August 2014 the review applicant said they visit family and friends together and are invited out as a couple. She said she had met the visa applicant’s son a few times. The review applicant said that the wedding in Vietnam was attended by 80 guests who were family members and friends of the couple.

39. The visa applicant in his declaration dated 1 August 2014 said they visit family and friends together and all his friends know the review applicant is his wife. He said she had met his son a few times. The visa applicant said that family members attended the traditional wedding ceremony and 80 guests, including family and friends, attended the wedding reception.

40. The Tribunal noted statutory declarations made by the visa applicant’s brother, Mr Thao Trung Mai and by Bich Thuy Phung, both of who reside in New South Wales. The Tribunal gave minimal weight to this evidence because the declarants had not spent any time with the parties as a couple and appeared to have not met the review applicant.  

41. Prior to the hearing additional statutory declarations made by the family members of the visa applicant and letters from friends of the review applicant were provided to the Tribunal. The Tribunal placed minimal weight on this evidence because the declarants had not spent time with the parties as a couple and had not met the review applicant.

42. Based on the evidence, the Tribunal was satisfied that parties represent themselves to other people, including family and friends, as being married to each other.

    The nature of the person’s commitment to each other

43. The Tribunal was provided with records of Viber conversations, telephone calls and text messages. 

44. The Viber conversations evidence related to 2014 and 2015. The telephone call and SMS message records related to periods during 2013, 2014 and 2015.

45. The review applicant told the Tribunal that from April 2013 to August 2013 they telephoned each other using phone cards. She said that in August 2013 the visa applicant had an iPhone and since then they have used Viber. She said that they talk to each other every day and up to three times a day.

46. The Tribunal considered brief handwritten letters from the review applicant to the visa applicant dated May 2013, June 2014, July 2014, August 2014, September 2014, October 2014 and November 2014. The Tribunal asked the review applicant the reason she wrote the brief letters to the visa applicant when she was speaking to him daily by telephone. She said she wrote the letters because they were planning to get married and knew that they had to provide evidence to the Tribunal.

47. The Tribunal pointed out that most of the letters preceded the date she said she accepted the marriage proposal, on 11 November 2013. The review applicant then said that she had written the letters out of “courtesy”.

48. The Tribunal referred the review applicant to her statutory declaration made on 6 August 2014 in which she said they had not rushed into the relationship and had thought it through. The Tribunal asked the review applicant whether she believed that commencing a relationship in April 2013, accepting a marriage proposal in November 2013 and marrying in January 2014 was not rushing into the relationship. She said that it did not matter whether a relationship was in existence for a short time or a long time and what mattered was whether the parties love each other. The Tribunal did not consider this to be a relevant response to the question asked.

49. The Tribunal referred the visa applicant to a brief letter he wrote to the review applicant dated 1 September 2013 and asked him why he wrote the letter. He said the reason was because they knew they had to provide evidence to the Tribunal. The Tribunal pointed out that this letter preceded the first marriage proposal. He then said that the reason he wrote the letter was to ensure that he had her correct postal address. In the letter he said to the review applicant that, “it is nearly three years since we first met each other”. The Tribunal asked him when he met the review applicant. He said in 2008. The Tribunal asked him why he said in the letter that they had met three years earlier. He said that he did not remember the reason.

50. Movement records show that since 2014 the review applicant has been absent from Australia during the following periods:

    ·3 January 2014 to 15 June 2014.

    ·15 February 2015 to 15 March 2015.

    ·7 April 2015 to 27 April 2015.

    ·29 August 2015 to 14 September 2015.

51. The review applicant told the Tribunal that she has returned to Vietnam three times this year because she misses the visa applicant. She said that she would stay in Vietnam until he is allowed to come to Australia and that the decision to refuse his visa was unfair. She said they want to start a family.

52. The review applicant said that if the visa applicant is granted a visa they will both live in the home where she currently resides. She said that after the visa applicant finds a job they will buy their own house. The visa applicant gave similar evidence in this regard and said that he is willing to do any job and he will work and the review applicant can stay at home.

53. The Tribunal received evidence from three witnesses, one by telephone and two in person. None of the witnesses had spent time with the parties as a couple. The two in person witnesses had not met the visa applicant and provided evidence that the review applicant had told them in 2013 that she was going to get married in January 2014.

54. The Tribunal explained to the review applicant the process under s 359AA of the Act. The Tribunal explained that it would be putting evidence to her which could be the reason, or part of the reason, for affirming the decision under review. The Tribunal explained what the information was, why it was relevant and invited her to comment or respond to the information.

1. The information put to the review applicant under s359AA was with respect to information received from an informant that the parties’ wedding was fake, that they were cheating the Australian Government and that their representative had been paid $50,000.

2. In response the review applicant became visibly upset and said she was in shock. The representative objected to the information and said that this case was a standard case and she had not been paid the alleged amount.

3. The Tribunal asked the review applicant who was paying the representative. She said the visa applicant’s brother who lives in Sydney had loaned her the money and she would repay him when she was able to do so. The visa applicant gave similar evidence in this regard. The Tribunal asked the visa applicant whether his brother in Sydney had attended the wedding. He said he had not. The Tribunal asked the visa applicant if his brother in Sydney had met the review applicant. He said that he had not.

4. At the conclusion of the hearing the representative made submissions regarding matters relied on by the delegate, namely the lack of official evidence regarding the review applicant’s address when she was in Vietnam in 2014 and the limited time the parties have spent together. The Tribunal indicated that it would not be relying on the first matter and in relation to the second matter, it would be considering the totality of the evidence and not just the time spent together.

   Conclusion

5. Having regard to the evidence individually and cumulatively, the Tribunal is not satisfied that the parties are not living separately and apart on a permanent basis and that they see their future as a long term one. The Tribunal is not satisfied that the parties have a mutual commitment to a shared life together to the exclusion of others and that the relationship is genuine and continuing.

6. In making this decision the Tribunal took into account the inconsistencies in the statutory declarations provided by the parties as referred to earlier in this Decision. The parties provided no satisfactory explanation for the earlier untruthful statements. The review applicant said that she had made a mistake and both parties said that they needed to demonstrate contact between them for the purposes of the visa application.

7. The Tribunal considers the inconsistencies to be significant because the untruthful information was provided despite the parties declaring the information to be true and because part of that information was about the commencement date and the duration of the relationship.

8. The Tribunal also took into account the brief letters the parties sent to each other and their stated reasons for doing so. The reasons included that they knew they would have to provide evidence to the Tribunal. The letters predate the marriage proposal and acceptance.

9. The Tribunal took into account the review applicant’s evidence regarding the marriage proposal. She said, very clearly, that she had not discussed marriage with the visa applicant before his first proposal in September 2013 and she did not accept at that time because she was shy. She was unable to provide a satisfactory explanation for her letter to the visa applicant dated a month earlier in which she refers to marrying the visa applicant.

10. The Tribunal found the review applicant to not be a credible witness.

11. The Tribunal took into account that the visa applicant provided untruthful information in a declaration made on 1 August 2014 and repeated it eight months later in an interview with the Department on 9 April 2015. The Tribunal noted that at the commencement of the interview the visa applicant was advised that it was very important that he give open and honest answers to all the questions asked of him.

12. The Tribunal found the visa applicant to not be a credible witness.

13. The Tribunal considered the information received from an informant which was put to the review applicant under s 359AA of the Act. The Tribunal accepted the representative’s statement that she had not been paid fees in the alleged amount. Given this finding the Tribunal decided that it could not rely on the accuracy of the information provided and placed no weight on it.

14. The Tribunal was not persuaded by the evidence presented before and during the hearing that at the time the visa application was made and at the time of this decision that the parties were in a spousal relationship.

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

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

    DECISION

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

    Christine Kannis
    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).