1518070 (Migration)

[2016] AATA 4815

1518070 (Migration) [2016] AATA 4815 (12 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms THI TU BINH NGUYEN

CASE NUMBER:  1518070

DIBP REFERENCE(S):  BCC2015/3221169

MEMBER:K. Chapman

DATE:12 December 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 12 December 2016 at 12:15pm

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) – Lack of candour – Inconsistent and evasive evidence – Lack of detail and specificity –

Limited probative evidence – Not in a spousal relationship

LEGISLATION

Migration Act 1958, ss 5F(2)(a)-(d), 65

Migration Regulations 1994, Schedule 2, cl.820.211(2)(a), cl 820.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 21 December 2015 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, Ms Thi Tu Binh Nguyen, applied for the visa on 3 November 2015 on the basis of the relationship with her sponsor, Mr Luu Huynh Nguyen. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 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.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.211(2)(a). Whilst satisfied the applicant was married to the sponsor at the time of the visa application, the delegate was not satisfied that they were in a genuine and continuing spousal relationship. On 30 December 2015 the applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision to the Tribunal with her application.

4. The applicant appeared before the Tribunal on 18 November 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, who is the applicant’s husband. The applicant was represented in relation to the review by her registered migration agent who attended the Tribunal hearing and made oral submissions on behalf of the applicant. The representative also submitted written submissions to the Tribunal on the day of the hearing, in addition to those submitted prior to the hearing. The Tribunal has duly considered all of these submissions. 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.

   ISSUES AND LAW

5. There is a two stage process for Partner visas. An applicant must first hold a provisional visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a permanent visa. The grant of a permanent visa would generally depend on whether the relationship has continued for a period of at least two years. The issues in the present case are whether the applicant was at the time of the visa application, and remains at the time of the making of this decision, the spouse of the sponsor.

   Whether the parties are in a spouse or de facto relationship

6. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the 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 applicant claims to be the spouse of the sponsor, who is an Australian citizen.

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 parties’ household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.

   BACKGROUND

8. Ms Nguyen, the applicant, is a 21 year old national of Vietnam. She first came to Australia as the holder of a Subclass 573 student visa in November 2013. Mr Nguyen is 23 years old and is an Australian Citizen by birth. According to the visa application and material in support, they first met at a youth group in Inala on 24 December 2013 and commenced dating in June 2014. The applicant moved into the sponsor’s family residence, with his mother and siblings, in August 2015 and they were married on 16 October 2015. The visa application was submitted on 3 November 2015. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

   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. The applicant enclosed with her visa application a Certificate of Marriage indicating she was married to the sponsor on 16 October 2015 at the Que Huong Restaurant in Queensland. 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 had regard to all of the evidence before it concerning the time of application and the time of decision. Documentary evidence submitted by the applicant contained in both the Departmental and Tribunal files included, but was not limited to, statutory declarations, unsworn statements, joint bank account statements, photographs, receipts for consumer items, utility bills, Centrelink correspondence and a tenancy agreement. The Tribunal notes the bulk of this material related to after the time of the visa application and was submitted on the day of the hearing. 

    Credibility Issues – Student History

11. The applicant told the Tribunal she arrived in Australia in November 2013 to study accounting, although her studies did not actually commence until January 2014 when she studied a preparatory English course at the Sarino Russo Institute. She advised she did not complete this course as she had to return to Vietnam between April and May 2014 on account of her ill father. According to the applicant she planned to spend five weeks in Vietnam but ended up staying there for two weeks before returning to Australia. The Tribunal asked the applicant if she returned to her studies after arriving back in Australia. The applicant told the Tribunal she did so during the month of June 2014 but then had to conclude that month for financial reasons. The Tribunal asked the applicant several times whether she completed any study in Australia after June 2014. The applicant first advised she could not return to study at Sarino Russo as her COE (Confirmation of Enrolment – for international students) had been cancelled. She then advised she applied to HETC to study English in October 2014 but that school couldn’t guarantee her visa. The applicant then indicated she did commence study at HETC but her friends told her their visas had been cancelled so she stopped studying there herself. Subsequently, the applicant advised the Tribunal she studied at HETC for approximately two months but ceased studies due to financial reasons. The Tribunal found the applicant to lack credibility in her responses given the variation in the answers she provided, the guarded manner in which she responded and the general lack of candour displayed by her. The Tribunal is not satisfied that the applicant was a genuine student in Australia after April 2014.

12. The Tribunal asked the applicant if she advised the Department of Immigration that she had ceased studying at Sarina Russo. Her response was she did not as she had legal advice indicating she could apply to another school for her visa. The applicant told the Tribunal approximately three months passed between her purported studies at Sarino Russo and HETC. When asked what she did in this period the applicant initially advised that she stayed at home, later advising she worked 15 hours per week performing paid training at a bakery and meeting agents to arrange a new school for her. The Tribunal found this evidence to be inconsistent and evasive. The Tribunal asked why the applicant did not return to Vietnam when her studies ended and she advised she had met her husband who indicated he would marry her. When asked if she married the sponsor to stay in Australia the applicant responded, “That’s part of the reason, however it’s mostly that I’m thinking that if I marry him I would stay here, I would work and I would return to my studies later.” The Tribunal finds this response not commensurate with the applicant being in a genuine relationship with the sponsor at the time of application. After careful consideration of the aforementioned evidence, the Tribunal has formed the view the applicant was not a genuine student in Australia after April 2014, her purpose in returning to Australia in May 2014 was to work rather than study and her motivation for entering the relationship with the sponsor was to remain in Australia so she could work.

    Circumstances of the relationship

13. The Tribunal has considered all of the circumstances of the relationship, including the following matters, in arriving at its decision concerning the existence of a spousal relationship between the applicant and the sponsor.

    Financial aspects of the relationship

14. The applicant submitted to the Tribunal statements from a joint bank account in the names of herself and the sponsor. The earliest statement before the Tribunal commences with an opening balance of zero, followed by a branch deposit of $200 on 29 December 2015. There are no bank statements before the Tribunal concerning the time of application. At the hearing, the applicant told the Tribunal the joint account was opened prior to December 2015 although the balance of the account was zero as it was established for future purposes. The applicant gave oral evidence that when she moved in with the sponsor’s family she was taken care of financially by the sponsor and his mother. She advised the sponsor was in receipt of Newstart Allowance from Centrelink and that she was not required to pay for rent or utilities herself. She indicated the sponsor made contributions to his mother for these expenses and that the couple did not have much money at this time. She also indicated she worked at a Bakery and later advised she was paid in cash for this work. No documentary evidence before the Tribunal indicated the applicant’s wage was put to any joint purpose with the sponsor.

15. The sponsor confirmed to the Tribunal he was in receipt of Newstart Allowance from Centrelink at the time of application and continued to receive this benefit at the time of the hearing. He told the Tribunal this benefit has always been paid into his own individual account. The sponsor advised he helped pay for food and bills at the time of application from his Centrelink benefits. The sponsor also told the Tribunal that the applicant was being paid in cash from her work at a bakery at the time of application. According to the sponsor, the couple’s only asset of significant value at the time of application was a wedding ring. Aside from the oral evidence and written statements of the applicant and the sponsor, the Tribunal had no other evidence concerning the financial aspects of the relationship at the time of application. Having the benefit of listening to the applicant and the sponsor give their oral evidence, the Tribunal considered it lacking in detail and specificity concerning the financial aspects of the relationship at the time of application. This, combined with the paucity of documentary evidence, suggested that at the time of application there was very little combining of finances between the applicant and the sponsor. After careful consideration, the Tribunal affords no weight to the evidence in support of the financial aspects of the relationship at the time of application.  

    Nature of the Household

16. The documentary evidence submitted by the applicant concerning the nature of the household at the time of application is very limited. A Form 888 Statutory Declaration from the sponsor’s older brother dated 29 October 2015 refers to the applicant living in the sponsor’s family home with him. That Declaration is brief and lacks detail concerning the nature of the couple’s household. Accordingly, the Tribunal affords it no weight. Unsworn statements from the applicant and the sponsor dated 24 October 2015 make passing reference to them living with the sponsor’s mother from 1 August 2015. Given their lack of detail and unsworn nature the Tribunal affords these statements no weight. The Tribunal notes that a limited selection of photographs submitted by the applicant are marked ‘home’, however there is no further information concerning their dates and the context in which they were taken. Accordingly, the Tribunal affords them no weight as evidence concerning the nature of the household at the time of application.

17. The applicant and the sponsor both gave oral evidence to the Tribunal that the applicant moved into the sponsor’s family home at Inala in August 2015 with the sponsor’s mother and siblings. They apparently resided there until January 2016 when the residents of the house moved to a new property in Inala. The couple’s oral evidence was that no rent was required to be paid by the applicant, nor was she required to pay any bills whilst living in the first residence with the sponsor. The sponsor told the Tribunal that this residence was owned by his Aunt and he was not required to pay rent. No evidence was before the Tribunal concerning the ownership of the residence, nor was there evidence of any correspondence addressed to the applicant at that address. Aside from the generally worded and unspecific Statutory Declaration from the sponsor’s brother previously described, no sworn evidence from other household residents was before the Tribunal concerning the time of application. The oral evidence of the applicant and sponsor indicated the applicant was working in a bakery at the time of application and the sponsor was not working regularly. The sponsor indicated the couple both contributed to the housework since they lived together, although limited details were provided.

18. The Tribunal considers the lack of specificity and detail in the documentary and oral evidence to be inconsistent with a developed spousal household. Whilst the Tribunal is prepared to accept the applicant resided in the same house as the sponsor on the basis of the aforementioned evidence, the Tribunal places low weight upon this evidence on account of its lack of detail. After careful consideration, the Tribunal finds the evidence in support of the nature of the household to be very limited and unpersuasive concerning the time of application.  

    Social aspects of the relationship

19. The applicant submitted two Form 888 Statutory Declarations to the Department in support of her visa application. The first Declaration from the sponsor’s brother, described above, lacks detail and makes only very limited reference to the social aspects of the relationship. Accordingly, the Tribunal affords it no weight. A Declaration dated 29 October 2015 from Thanh Thuy Tran, the employer of the applicant, is generally worded, lacks detail and makes only passing reference to the social aspects of the relationship. Accordingly, the Tribunal places no weight upon it. The unsworn statements of the applicant and the sponsor dated 24 October 2015, referred to above, make reference to the couple participating in social activities with other persons. Given their unsworn nature the Tribunal affords these statements no weight.  

20. The applicant submitted photographs of her wedding and in social situations with the sponsor. The Tribunal accepts the couple were married in a restaurant in front of other persons (including local politicians who by coincidence were campaigning in the area according to the sponsor) and that they have engaged in some social activities together. Accordingly, the Tribunal places some weight upon the photographs submitted by the applicant concerning the social aspects of the relationship. The applicant and sponsor also gave oral evidence that the applicant’s Aunt attended their wedding and the Tribunal accepts this evidence, placing some weight upon it. The Tribunal also accepts the oral evidence of the couple that members of the sponsor’s family attended the wedding and accordingly some weight is placed upon that evidence. Aside from the aforementioned evidence, there is a lack of third party evidence before the Tribunal attesting to the social aspects of the couple’s relationship.  

21. The applicant submitted to the Tribunal an unsworn statement dated 10 September 2015, purportedly from the applicant’s father in Vietnam to the sponsor’s mother in Australia, indicating his permission for the applicant to be married to the sponsor. That statement cites business reasons for his inability to attend the wedding in Australia and also requests the couple to present themselves to him in Vietnam following the wedding. The statement is generally worded, lacks specific detail concerning the relationship and is unsworn. Accordingly, the Tribunal affords it no weight as evidence in support of the social aspects of the relationship. At hearing, the applicant told the Tribunal that her father couldn’t attend the wedding due to his work in Vietnam. The Tribunal put it to the applicant that it was unusual for her father to have not attended the wedding. In response the applicant advised her father was unable to attend her wedding as her COE (Confirmation of Enrolment - for international students) had been cancelled. On her evidence, this cancellation would have made it too difficult for her father to obtain a visa to visit Australia. The Tribunal asked the applicant whether she was a student at that time and she advised she still was, although her COE was cancelled. At the hearing the applicant also confirmed she and the sponsor had not been to Vietnam to see her father following the wedding on 16 October 2015. The Tribunal found the evidence of the applicant concerning her father’s non-attendance at her wedding to be inconsistent. The Tribunal also found her evidence inconsistent concerning her student status in Australia, which has also been outlined above. The Tribunal considers the non-attendance of the applicant’s father at the wedding, in conjunction with the couple’s failure to visit him in Vietnam over a year following it, to be suggestive of the applicant only holding herself out as a married person to a very limited number of her family members. The Tribunal considers the limited evidence from her family members to be a serious deficiency in Ms Nguyen’s case. After careful consideration, the Tribunal considers there to be limited probative evidence to support the social aspects of the relationship at the time of application.

    Nature of persons’ commitment to each other

22. The evidence regarding the nature of the commitment between the applicant and sponsor at the time of application is very limited. The unsworn statements of the applicant and the sponsor dated 24 October 2015, referred to previously, make limited reference to the nature of their commitment to each other. Given their unsworn nature and lack of detail the Tribunal affords these statements no weight as evidence in support of the persons’ commitment to each other. The oral evidence of the couple indicated they commenced dating in June 2014 before moving in together in August 2015, then marrying in October 2015. The Tribunal considers this a relatively short relationship, and a very short period of cohabitation, prior to their marriage and subsequent visa application on 3 November 2015. The couple gave oral evidence indicating they have drawn companionship and emotional support from each other and that they see the relationship as a long term one. They also indicated the applicant had a view to recommencing studies in the future. This evidence was lacking in detail and generally framed. Accordingly, the Tribunal places low weight upon it.

1. As indicated above, the Tribunal is concerned with the motivations of the applicant in entering the relationship with the sponsor and applying for the Partner visa. The applicant lacked credibility in recounting the history of her studies in Australia and the Tribunal is not satisfied that at the time of application she had a genuine commitment to the sponsor. Overall, there was an absence of persuasive evidence before the Tribunal demonstrating a strong degree of commitment between the couple at the time of application. 

   CONCLUSION

2. Having regard to the above matters, the Tribunal accepts the applicant was living in the sponsor’s family home, with his mother and siblings, at the time of the visa application. However, the Tribunal is not satisfied the applicant and the sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others, or that the relationship between them was genuine and continuing at the time of the visa application. The Tribunal is therefore not satisfied that the requirements of s.5F(2)(b)-(c) of the Act were met at the time of the visa application.

3. Given these findings, the Tribunal is not satisfied that at the time the visa application was made Ms Nguyen and Mr Nguyen were in a spousal relationship as defined in the Act. Therefore Ms Nguyen does not meet cl.820.211(2)(a). Clause 820.221 requires that the visa applicant continue to satisfy the clause 820.211 criteria at the time of decision, unless the relationship has ceased and certain circumstances exist (concerning death of the sponsor, family violence and parental responsibilities). No evidence of such circumstances was before the Tribunal. It follows that Ms Nguyen does not satisfy the requirements of cl.820.221.

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

   DECISION

5. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

   K. Chapman
   Member

   
   

   ATTACHMENT - Extract from Migration Regulations 1994

   1.15A     Spouse

   (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).