1510454 (Migration)

[2016] AATA 4144

1510454 (Migration) [2016] AATA 4144 (18 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr THE DUONG NGO

CASE NUMBER:  1510454

DIBP REFERENCE(S):  CLF2012/137560 CLF2015/47457

MEMBER:Kira Raif

DATE:18 July 2016

PLACE OF DECISION:  Sydney

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

Statement made on 18 July 2016 at 1:12pm

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 28 July 2015 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of Vietnam, born in June 1991. He applied for the visa on 5 July 2012 on the basis of his relationship with his sponsor. The applicant was granted the temporary Partner visa on 17 September 2013, however, his application for the permanent Partner visa was refused because the delegate was not satisfied the applicant was the spouse of the sponsor. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 18 July 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, the applicant’s cousin and former landlord. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review by his registered migration agent.

4. The issue before the Tribunal is whether the applicant is the spouse of the sponsor. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. At the time the application was made, 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).

6. 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 was at the time of the application a permanent resident of Australia and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

7. ‘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).

   Are the parties validly married?

8. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The applicant provided with his application a copy of the marriage certificate showing he registered marriage with the sponsor in May 2012. There is nothing to suggest the marriage is not valid. The Tribunal is satisfied on the evidence before it that  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?

9. 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, the Tribunal is of the view that such documents and evidence can be obtained even if the relationship is not genuine. Thus, the fact that the parties reside at the same address does not mean they have established a joint household. The fact that they put their names on various documents, bills or receipts does not mean they genuinely share their financial resources. The fact that they took some photographs together does not mean they are committed to the relationship. That is, if the relationship was not genuine but a person wished to obtain evidence to convince Immigration that it was, the same documents could have been obtained. As such, the Tribunal places little weight on the documentary evidence presented with the application.

10. The Tribunal is concerned about the applicant’s motivation in entering this marriage. His evidence to the Tribunal is that he did two years of an accounting course but did not complete the course because he thought it was too difficult. He transferred to a computing course and did one year of that but said he did not complete the course because he was too busy working and looking after his family. It appears that the applicant had little interest in studying and that his preference was to remain in Australia and to work. The applicant’s evidence to the Tribunal is that he stopped studying around the time of, or shortly after, the marriage. The Tribunal is concerned that the reason the applicant entered the present relationship was to enable him to remain in Australia as it was a cheaper and more convenient way than maintaining a Student visa.

11. The Tribunal has considered the nature of the household. The applicant’s evidence to the Tribunal is that he works seven days per week. He claims during the week he leaves the house early in the morning, at 7 am or earlier and does not get home until 10 or 11 pm. He also works on weekends and does not get home until at least 5 or 6 pm on weekends. The sponsor also works morning or afternoon shifts. It appears that the couple spend very little time in each other’s company.

12. The Tribunal questioned the parties about different aspects of their daily lives. The Tribunal found their answers to be different in relation to many matters. For example,

    a.The applicant said he attends the gym 5-6 times a week. The sponsor said he attends the gym 3-4 times a week.

    b.The applicant said that in the past week the sponsor did afternoon shifts. The sponsor said she did morning shifts that week, although she also said they did not go shopping the day before the Tribunal hearing because she was working in the afternoon. If the couple do live together, it is not obvious why they should have different information about the sponsor’s daily working arrangements. Nor does the Tribunal accept that they were both confused about the sponsor’s employment arrangement in the week before the hearing.

    c.The applicant said it takes the sponsor 50 minutes to get to work. The sponsor said it takes her 15-20 minutes to get to work, whether she drives or takes a train. The applicant suggested to the Tribunal that the sponsor gets up at 6 am and starts work at 7 am, so he assumed it takes her about an hour to get to work. It is of concern to the Tribunal that the applicant’s knowledge of the sponsor’s daily’s routine is based on assumption, rather than any communication with the sponsor.

    d.The applicant said he last saw his friend Bach about a month ago at the Bankstown Sports Club. He said the sponsor was present on that occasion. The sponsor said the applicant and Bach saw each a month ago at the Bankstown Sports Club and she was not present on that occasion. The applicant referred to another friend, Minh and said he saw that friend about a month ago. The sponsor did not know when he last saw that friend and thought he did not see that friend for a long time. The Tribunal notes that the applicant referred to having only two best friends, so it would not be unreasonable for the sponsor to know when he meets up with these friends. The sponsor stated that her husband is rarely at home and she does not know what he does. In the Tribunal’s view, that suggests lack of interest in each other’s affairs.

13. In the Tribunal’s view, these matters indicate that the couple have not established a joint household, even if they live at the same address, and that they have little familiarity with each other’s affairs. The applicant repeatedly stated to the Tribunal that they are both busy with work. In the Tribunal’s view, that is not a good excuse for the apparent lack of communication between the parties and it appears that their work commitments are of greater importance to them than their communication with one another.  

14. The Tribunal has considered the social aspects of the relationship. The Tribunal acknowledges the oral evidence of the two witnesses who expressed their beliefs that the relationship is genuine and continuing. The Tribunal acknowledges the written statements submitted with the application and to the Tribunal. The Tribunal accepts that those who provided statements believe the relationship to be a genuine one. The Tribunal also acknowledges the documentary evidence of social activities, including the photographic evidence, and accepts that the parties had socialised together and represented themselves to others as being in a spousal relationship.

15. However, the Tribunal has formed the view that the couple’s knowledge about, and interest in, each other’s families is minimal. For example in oral evidence,

    a.   The applicant said he has rare contact with his brother because his brother often changes his contact details. The sponsor said the applicant has regular contact with his brother, they speak every two weeks and she takes part in such conversations. The parties have not been able to offer a satisfactory explanation for that discrepancy and the Tribunal considers that it reflects their lack of candour.

    b.   The applicant said the sponsor’s sister lives in New Zealand and has no plans to return to Australia. The sponsor said the sister plans to return to Australia at the end of 2016. She said she did not inform her husband about her sister’s intentions. 

16. The Tribunal is not convinced that the parties take much interest in each other’s families. In the Tribunal’s view, that indicates they do not view the relationship as a long term one.

17. The Tribunal has considered the financial aspects of the relationship. The applicant’s oral evidence to the Tribunal is that he and the sponsor have a joint account and the sponsor also has a separate account in a different bank. He said that none of the sponsor’s funds are placed in the joint account although the account is used for daily expenses.  The applicant said that the sponsor has a separate account which is used for her own income and her ‘personal expenses’ such as shopping. It is unclear why such expenses cannot be paid from the joint account. The applicant also said that the sponsor sometimes keeps money for her mother but it is unclear why that cannot be done using the joint account. As the sponsor makes no contribution to the joint account, the Tribunal is not convinced that the joint account represents the couple’s sharing of financial resources. The applicant ultimately said that the sponsor does not want to use the joint account. The Tribunal has formed the view that the couple are reluctant to share their financial arrangements.

18. The applicant’s evidence to the Tribunal is that gas and electricity and paid by the sponsor from her individual account while he pays for food and rent. The Tribunal is not convinced that the couple share day to day household expenses. The Tribunal is not satisfied they pool financial resources.

19. Further,

    a.The applicant said the sponsor transfers the money for the gas and electricity bills from her account. The sponsor said she pays the bills at the post office. When the Tribunal pointed out that the applicant’s evidence was different, the sponsor’s evidence changed and she said she sometimes pays the bills at the post office and sometimes by electronic transfer.

    b.The applicant said the sponsor gets paid fortnightly on Thursday. The sponsor said she is paid weekly on Saturdays. The applicant sought to explain this by stating that he may have been confused with the sponsor’s previous job but his evidence is that the sponsor changed jobs several months ago, so there is no reason for him to have been confused about it.

    c.The applicant said he is paid on Sundays by direct transfer. The sponsor said he is paid on Saturdays.

20. The Tribunal is not convinced, having regard to these matters, that the parties discuss their financial affairs with each other. The Tribunal has formed the view that they do not have much knowledge of each other’s finances. In such circumstances, the Tribunal has formed the view that the joint arrangements, including the joint bank account and the purchase the car, were made solely for the purpose of the visa application.

21. The Tribunal has considered the nature of the parties’ commitment. As noted above, the Tribunal has formed the view that the parties spend very little time with each other. Although they claim to have formed a committed relationship more than four years ago, the Tribunal finds that their knowledge about each other is inadequate. For example,

    a.The applicant informed the Tribunal in oral evidence that the sponsor changed jobs because she had a conflict with one of her colleagues. The sponsor said she changed jobs because she was looking for better opportunities and wanted to change environment and there were no specific reason for her to change jobs.

    b.The applicant said he intends to undertake a Diploma of Beauty at TAFE in 2017 and said he spoke to his friends about the course. The sponsor was unaware of his study plans. She said she wants the applicant to do a management course or short courses but they want to settle first, so the applicant has no immediate study plans. She appears to be unaware of the applicant’s claimed desire to do a TAFE course.

    c.The applicant informed the Tribunal that he was doing his Accounting and IT courses five days per week. The sponsor did not know what hours the courses involved, stating she was living in England at the time. However, the couple claim they maintained a close relationship and frequent contact before the sponsor travelled to Australia and in the Tribunal’s view, the sponsor may be expected to be aware of the applicant’s study arrangements, particularly as they claim the applicant continued to study until after the sponsor came to Australia.

    d.The applicant said the sponsor was granted permanent residence in 2012. The sponsor said that happened in 2009. While the Tribunal does not expect the applicant to be familiar with the Australian immigration processes, there is no reason why the applicant should be unaware of such significant matters involving the sponsor particularly since 2012, when the applicant believes the sponsor was granted permanent residence, the couple were already in a committed relationship.

22. The Tribunal has formed the view that the couple do not have much contact with each other and do not have adequate information about each other. In the Tribunal’s view, that shows lack of mutual commitment to the relationship.

23. The applicant told the Tribunal that the sponsor travelled overseas about six months after the marriage, around January 2013. He claims that he did not travel with her because he could not get leave from work. It is unclear why the sponsor could not have changed her travel arrangements to be able to travel with the applicant and the Tribunal is not convinced that the applicant was unable to take time off indefinitely. The applicant informed the Tribunal that around June 2014 the sponsor travelled with her best friend for a holiday but he again claims he was too busy working and did not accompany his wife. He said that in 2016 the sponsor travelled to Asia but he did not travel due to work and life pressures they decided they needed their own space. The Tribunal finds it of concern that since 2012 the sponsor made three trips overseas, yet the applicant has not accompanied her on a single occasion, claiming to be too busy. In the Tribunal’s view, that is a strong indicating that the couple have little commitment to this relationship and little interest in spending time with each other. The applicant’s evidence is that they travelled around Australia but the Tribunal’s concern is that the larger, more significant trips are not being undertaken together. The applicant also informed the Tribunal that he plans to take trips with the sponsor to Vietnam next year but he said he has not discussed it with his wife and the Tribunal does consider this to be a genuine plan.

24. The Tribunal discussed with the visa applicant the allegation received by the Department. The applicant said that he did not know who sent the allegation and could not comment. Given the paucity of information contained in it, the Tribunal places no weight on the allegation.

25. The Tribunal acknowledges that some of the couple’s oral evidence was consistent. However, the Tribunal considers the above inconsistencies significant as they raise concerns about the couple’s cohabitation and the nature of their commitment. It is possible, in the Tribunal’s view, that the couple had simply memorised information which they were expecting to be asked about but had little knowledge about other aspects of their relationship. The applicant’s representative submits that a long time has passed and that the couple cannot be expected to recall the information perfectly. The Tribunal is mindful that most of the questions concerning the couple’s daily lives related to recent events and not events that occurred many years ago. The passage of time should not affect the couple’s knowledge of when they are paid salaries, what the applicant does after work or their contact with family members. While some of the questions, for example those relating to the applicant’s study, related to earlier events, the Tribunal does not consider it unreasonable for the parties to know such matters given that the applicant had done a finite and limited amount of study in Australia.

26. The Tribunal acknowledges the representative’s submission that the applicant works very long hours but in the Tribunal’s view, employment does not necessarily affect one’s memory and without any probative evidence for example in the form of medical reports, the Tribunal does not accept that the applicant’s memory is poor. The Tribunal is not convinced that the inconsistencies in evidence are caused by loss of memory. In the Tribunal’s view, they reflect the parties’ lack of knowledge about each other or lack of candour.

27. Overall, the Tribunal acknowledges that the parties have been married for over four years and is prepared to accept that they live at the same address. However, the Tribunal is not satisfied that they have established a joint household. The Tribunal finds that they spend minimal time in each other’s company and have little knowledge about each other. The Tribunal is not satisfied that they share their financial resources. The Tribunal is not satiated they rely on each other for comfort or emotional support. The Tribunal is not satisfied they view their relationship as a long term one. The Tribunal is not satisfied there is a mutual commitment to the relationship.

28. Having regard to the totality of evidence before it, the Tribunal is not satisfied that at the time of this decision, the parties are in a spousal relationship. Therefore the applicant does not meet cl.801.221(2)(c). 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).

    Conclusion

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

   DECISION

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

   Kira Raif
   Senior Member