1514458 (Migration)

[2016] AATA 4537

1514458 (Migration) [2016] AATA 4537 (17 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Truong An Le

CASE NUMBER:  1514458

DIBP REFERENCE(S):  OSF2010070270

MEMBER:Kira Raif

DATE:17 October 2016

PLACE OF DECISION:  Sydney

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

Statement made on 17 October 2016 at 1:55pm

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 October 2015 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of Vietnam, born in February 1989. He applied for the visa on 30 June 2010 on the basis of his relationship with the sponsor. The applicant was granted the temporary Partner visa in Subclass 309 in January 2011, however his application for the permanent visa was refused because the delegate was not satisfied the applicant was the spouse of the sponsor, as required by cl. 100.221. The applicant seeks review of the delegate’s decision. 

3. The applicant appeared before the Tribunal on 17 October 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, the applicant’s uncle and the sponsor’s mother. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. The criteria for the grant of a Subclass 100 visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

5. Clause 100.221 requires that the applicant meet one of five alternative requirements. These include cl.100.221(2) and (2A) which require, amongst other things, that at the time of this decision, the applicant is the spouse or de facto partner of the ‘sponsoring partner’. Unless the applicant was granted a Subclass 309 visa by Ministerial intervention, the ‘sponsoring partner’ is the person who was specified as the applicant’s spouse or de facto partner or intended spouse or de facto partner in the related Subclass 309 application, being an Australian citizen, permanent resident or eligible New Zealand citizen. In the present case, the applicant claims to be the spouse of the sponsor, a ‘sponsoring partner’ within the meaning of that term.

6. ‘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 parties’ household and their commitment to each other as set out in r.1.15A(3).

   Are the parties validly married?

7. 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 primary application a copy of the marriage certificate, showing that his marriage to the sponsor was registered in September 2009. There is nothing to suggest the marriage is not valid. The Tribunal is satisfied 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?

8. 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 does not consider the documentary evidence to be determinative of the issues at hand.

9. The Tribunal has found the applicant’s oral evidence to be very vague and unpersuasive. He had difficulty providing details, dates or circumstances of various events. For example, when asked to describe the nature of his relationship with the sponsor since the marriage in 2009, the applicant said they loved each other and were happy together and he could add little more. When asked what they did as a couple, the applicant repeatedly stated that the sponsor cooks and he tidies up the house and they watch movies together. That also appeared to be the extent of the couple’s joint activities.

10. The Tribunal has considered the nature of the household. There is before the Tribunal a joint lease agreement and various correspondence addressed to the couple at the same address. The Tribunal is satisfied the couple had informed others about their cohabitation. However, there were significant deficiencies in their oral evidence to the Tribunal that causes the Tribunal to question the couple’s living arrangements. These are outlined below.

    a.The applicant informed the Tribunal that the family had been living at the current address for about three to four years and said the rent had not gone up since they moved in. The sponsor said the rent had gone up about a year ago. The applicant explained that his mother in law is responsible for all the arrangements associated with the lease and his wife can have the discussions with her mother about any rent increase. The Tribunal is concerned that the applicant does not consider it necessary to have any conversation with his wife about what is likely to be among the family’s most significant weekly expenses.

    b.The applicant told the Tribunal the sponsor’s mother is mainly responsible for shopping and the sponsor sometimes does the shopping after work. He has not mentioned doing shopping with the sponsor. The sponsor gave the same evidence but said that once a month or so she and the applicant do shopping together.

    c.The applicant claims he has been living in the same household as his mother in law for a number of years. He said that the mother in law is doing a course but he could not state where she was studying, saying it is private business and he does not want to ask. It is not apparent why the nature of one’s study is private business and why the visa applicant would be uncomfortable asking her about the study. The applicant also could not state how long his mother in law has been doing the course or when she would complete it. The applicant did not know whether the mother in law was working or studying full-time. The applicant had equally little detail about the mother in law’s partner who used to live in the same household as the applicant until about a year ago. The Tribunal has formed the view that he applicant had minimal knowledge about his parents in law and little interaction with them.

    The applicant explained to the Tribunal that he leaves home early and comes back late but that does not explain why there would be so little communication between members of the same household. In the Tribunal’s view, such lack of knowledge about daily activities of people living in the same household and close family members suggests either that the applicant does not live with the sponsor’s family as he claims or that he takes very little interest in that family’s affairs.

    d.The applicant said the sponsor’s sister lives with them. Yet he knew little about her. He said she stopped going to school either one or two years ago. He did not know whether she resumed her studies. He said she is looking for work but could not state what kind of work she intends to find. The applicant said he does not like to ask personal questions. The Tribunal has formed the view that the applicant has little interest in the sponsor’s sister.

    e.The applicant said the sponsor’s sister completed year 9 or year 10 before she left school. The sponsor said she finished up to year 11 before leaving school. The applicant said she left school 1-2 years ago. The sponsor said she left school 7-8 months ago. The parties claim that the sister lives in the same household and in that case, it is difficult to see why the applicant would have so little knowledge about her.

    The Tribunal acknowledges the applicant’s evidence that it is hard to talk about personal things to young people but in the Tribunal’s view, his lack of knowledge shows his lack of interest.

    f.The applicant could not state when he and the sponsor last did shopping together or when the sponsor last bought him any clothes. He could not state when the sponsor last bought herself any clothes or what she bought. The applicant stated the mother in law is predominantly responsible for shopping but he said the sponsor sometimes does shopping after work. He could not state when the sponsor last shopped for groceries, stating that he may be upstairs when the sponsor comes home. The Tribunal is concerned that the parties do not appear to have established meaningful communication with each other.

    g.The applicant said he speaks to his parents once a fortnight or once a month. The sponsor said they speak to his parents every month or two months. She then said that he may call his parents when she is at work bur she is not sure. The applicant also said that he sometimes calls his parents when the sponsor is at work and he does not always tell her about these calls. It is of some concern to the Tribunal that the partners would not communicate with each other about the relatives.

11. The Tribunal acknowledges that much of the couple’s evidence about their living arrangements was consistent and the Tribunal is prepared to accept that they live at the same premises. However, the above discrepancies and deficiencies in evidence suggest that the couple do not take much interest in each other’s affairs and do not discuss their daily affairs and everyday lives with each other. There also appears to be very limited contact, and interest in, with family members, despite the joint living arrangements. In such circumstances, the Tribunal is not satisfied that they have established a joint household, even if they do live at the same premises. 

12. The Tribunal has considered the social aspects of the relationship. There are a number of statements from third parties and the Tribunal accepts that they are aware of the relationship. The Tribunal also acknowledges the oral evidence of the couple’s witnesses. The Tribunal accepts that the parties have undertaken joint social activities. The applicant’s evidence to the Tribunal is that he has many work friends who had not met the sponsor. The applicant claims his parents love the sponsor but he had difficulty explaining how frequent the contact between the sponsor and his parents is. The applicant also said there is no contact between the sponsor and his siblings when they live in Australia. In the Tribunal’s view, such limited contact between the sponsor and the applicant’s family also shows disinterest in family affairs. The Tribunal accepts that there is some degree of social recognition of the relationship but the Tribunal is concerned by the couple’s limited desire to establish a closer relationship with family members.

13. The Tribunal has considered the financial aspects of the relationship. The applicant initially said that he and the sponsor only have the joint account and no other accounts. He then said that they used to have other accounts but did not use them, so the accounts were closed. The sponsor said neither had a different account in the past and they only had one joint account. The applicant suggested that the sponsor may have forgotten but it is unclear to the Tribunal how it is possible to forget having an account or closing an account when expressly asked about the matter.

14. The applicant provided copies of the bank statements from NAB showing some transactions. The applicant’s oral evidence to the Tribunal is that both he and the sponsor are paid in cash and that in Cabramatta ‘nobody uses bank accounts’. He said that they sometimes deposit money into the account to use for daily expenses but there is no obvious reason why they could not use cash, given that both are paid in cash and it takes extra effort to put the money into the account and withdraw from the account. The sponsor suggested that they opened a joint account to accumulate savings but she also said that they have not accumulated any savings for years, so that does not appear to be the purpose of opening the joint account.

15. The Tribunal is satisfied that the couple operate a joint account. However, the Tribunal is not convinced by their explanations about the need for that account or its use. The Tribunal has formed the view that the account was opened for the purpose of showing evidence to Immigration.  There is no evidence of joint ownership of assets or joint liabilities. There is no evidence of legal obligations owed to the other party. The Tribunal has formed the view that the joint financial arrangements, including any sharing or household expenses and any pooling of financial resources, were prepared for visa purposes.

16. The Tribunal has considered the nature of the parties’ commitment to each other. The applicant and the sponsor commenced the relationship in early 2009 and had been married for a period exceeding seven years. The Tribunal acknowledges that it is a significant period. However, for the reasons set out elsewhere, the Tribunal has formed the view that the parties do not have adequate knowledge about each other and that they have not established meaningful communication. In addition to the concerns identified above, the Tribunal notes the following.

    a.The review applicant could not state how long the sponsor worked for the current employer.

    b.The review applicant did not know what formal qualifications the sponsor holds. He said she finished school when they met but did not know the name of the school

    c.The applicant said he changed jobs from the chicken factory to the tiling job because there was not enough work in the chicken factory. The sponsor said he changed jobs because the work in the chicken factory was too hard. The applicant did ultimately state that the work was too hard and he was not treated well but the Tribunal has formed the view that the partners had not discussed the matter among each other.

    d.The applicant was not sure if the sponsor had any formal training as a beautician. The sponsor said she completed a Diploma of Beauty around 2011 or 2012. The Tribunal is mindful that the applicant believed the sponsor completed her studies before they formed a relationship and the fact that she completed the course two after the marriage and the applicant knew nothing about it suggests his lack of interest in the sponsor’s affairs. The applicant suggested that due to his lack of English, he did not know about the qualification but presumably he can communicate with the sponsor in Vietnamese, so his lack of English is not a good reason for the applicant to be unaware of the sponsor’s qualification or the period she undertook her studies.

17. The Tribunal has formed the view that the applicant and the sponsor have little interest in each other’s affairs. The Tribunal is not satisfied they communicate with each other about their daily activities or that they take interest in such activities. In the Tribunal’s view, such arrangements are inconsistent with the existence of a genuine and committed relationship. The Tribunal is not satisfied the couple draw companionship and emotional support from each other.

18. The applicant informed the Tribunal that they purchased a car in 2012 and paid $19,000. He said the sponsor purchased the car by herself and he did not accompany her, stating he was too busy. However, he also told the Tribunal that he was working 5 days a week at the time. The Tribunal is not convinced that the applicant was so busy as to be unable to find a few hours to help the sponsor with the purchase. The Tribunal is mindful that this would have been a very significant and expensive purchase for the couple. Yet the applicant did not find the time, and did not make the effort, to help the sponsor with the purchase. The applicant explained that they did not agree in advance what car to buy and the sponsor made the decision herself and it is not apparent that she has any knowledge about cars. The fact that the applicant shows so little interest in the matter, and provided no help and support in major decisions is of significant concern to the Tribunal. The Tribunal is not satisfied the parties rely on each other for comfort and emotional support. 

19. The Tribunal also found the partners’ evidence about their plans to have children to be problematic. The applicant’s evidence on the issue was very vague. He said that the sponsor went to see doctors about pregnancy but he could not remember when she saw the doctors and could not state the names of any of the doctors she saw. He said he did not accompany the sponsor because he was too busy working. The applicant could not state what tests had been performed, if any. The applicant appears to be entirely indifferent about the issue and the Tribunal is not convinced that the applicant provides comfort and support to the sponsor. In the Tribunal’s view, that is a strong indication that the relationship lacks mutual commitment and is not seen by the partners as a long term one. The applicant also told the Tribunal that he had not seen any doctors. He said that they are stressed and maybe that is the reason they have not had children but in the Tribunal’s view, if they genuinely wished to have children, as the applicant claims, they would have found the time and made the effort in the seven years since their marriage, to see health professionals. The Tribunal has formed the view that the couple had not made any effort to address the issue and the Tribunal is not satisfied that they genuinely wish to have children, as they claim. The Tribunal is concerned that this may indicate that they do not view the relationship as a long term one, given that both the applicant and the sponsor claim they wish to have children.

20. Despite the length of this relationship, the Tribunal is not satisfied the partners provide each other with companionship and emotional support. The Tribunal is not satisfied they see the relationship as a long term one.

21. The Tribunal has considered all the circumstances of this relationship. The Tribunal acknowledges that some aspects of the relationship point to its genuine nature. In particular, the Tribunal places weight on the fact that the couple had been married for over seven years and the Tribunal is satisfied they live together. Against these considerations, the Tribunal has formed the view that they do not have adequate knowledge about each other and, problematically, that they do not take sufficient interest in each other and their immediate families as may be expected in a committed relationship. The Tribunal is not satisfied they view the relationship as a long term one. Overall, the Tribunal is not satisfied that the applicant and the sponsor have a mutual commitment to shared life to the exclusion of others. The Tribunal is not satisfied their relationship is genuine and continuing. Given these findings 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.100.221(2). There is no evidence to indicate that the applicant meets any of the alternative subparagraphs in cl. 100.221. The Tribunal is not satisfied the applicant meets cl. 100.221.

    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 (Migrant) (Class BC) visa.

   Kira Raif
   Senior Member