2007681 (Migration) - [2024] AATA 2830

2007681 (MIGRATION) [2024] AATA 2830 (5 JULY 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Pina Careri (MARN: 9359608)
CASE NUMBER:  2007681
MEMBER:Justine Clarke
DATE:5 July 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first-named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl 309.211 of Schedule 2 to the Regulations; and
·cl 309.221 of Schedule 2 to the Regulations.

Statement made on 05 July 2024 at 3:41pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – financial aspects – nature of the household – social aspects – nature of the commitment – inception and development of the relationship within a month – duration of the relationship – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 376
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 309.211, 309.221
CASES
El Jejieh v Minister for Home Affairs (No 2) [2019] FCCA 840
He v MIBP [2017] FCAFC 206
Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made on 21 April 2020 by a delegate of the Minister for Home Affairs to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (the Act).
On 15 November 2018, the first-named visa applicant (hereafter the visa applicant), who is a national of Vietnam, applied for the visa based on her relationship with her sponsor, the review applicant. It is claimed that the second and third-named visa applicants are, respectively, the visa applicant’s daughter and son.
At the time the visa applicant applied for the visa, the visa applicant was [age] years of age; the review applicant was [age] years of age; the second-named applicant (the claimed daughter) was [age] years of age, and the third-named applicant (the claimed son) was [age] years of age.
At the time of this decision, the visa applicant is aged [age] years of age; the review applicant is aged [age] years of age; the second-named applicant is [age] years of age, and the third-named applicant is [age] years of age.
At the time the applicants applied for the visas, Class UF contained only one subclass: Subclass 309 (Partner (Provisional)). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. The primary criteria include cl 309.211 and cl 309.221. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. The secondary criteria include cl 309.321.
The review applicant provided the Tribunal with a copy of the delegate’s refusal decision (the primary decision). The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.211 of Schedule 2 to the Regulations. The delegate assessed the application pursuant to cl 309.211(2) and found that the information and evidence, submitted in support of the application, was not sufficient to demonstrate that, at the time of application on 15 November 2018, the visa applicant satisfied the definition of spouse under s 5F of the Act. The delegate made no findings in respect of the time of decision criterion in cl 309.221.
With respect to the financial aspects of the relationship, the delegate noted the evidence of an Australian joint bank account for the period June 2017 to May 2019. However, the delegate gave only limited weight to this evidence because it was used regularly until November 2018 only, when the visa applicant had been living in Australia. With respect to the extent of any pooling of financial resources, the delegate expressed concern about a letter that had been submitted to the Department showing that, in June 2017, the visa applicant had requested a payroll officer to deposit her salary into the couple’s joint bank account. The delegate noted that, at interview, the visa applicant had stated that she had only worked for her family and had never worked for an organisation in Australia and that, when she had been asked at the interview why she had submitted the letter, she had replied that she did not know. The delegate expressed concern that the letter may have been generated for the purposes of the visa application and accordingly gave it little weight. The delegate also gave only a little weight to the evidence that, in the period between December 2018 and June 2019, the review applicant had transferred approximately AUD 7,750 to the visa applicant, saying ‘it does not demonstrate a major financial commitment to the pooling of shared financial resources’.
With respect to the nature of the household, the delegate noted the various evidence that had been submitted, including correspondence addressed to the visa applicant and the review applicant at the same address in Australia and hotel receipts evidencing that the couple had rented the same hotel room in Da Nang, Vietnam in November 2018 and that the review applicant had obtained temporary household registration at the visa applicant’s address in Binh Thuan, Vietnam in November 2018. However, the delegate stated that it was ‘reasonable to expect a greater degree of evidence of having established a joint household’ and that they were ‘not satisfied that the nature of household evidence gives strong support for the existence of a genuine and continuing relationship’.
With respect to the social aspects of the relationship, the delegate acknowledged and gave some weight to the evidence that had been submitted (including photographic evidence) that suggested a level of social recognition of the relationship. However, the delegate expressed concern that no wedding photographs had been submitted and that the visa applicant’s and the review applicant’s immediate families had not attended the wedding given that ‘[i]n Vietnam, as in most cultures, engagements and weddings are a very important life cycle event and are used as an opportunity for the parties to present their relationship to family, friends and the wider community’. In the delegate’s words, ‘I give the absence of your and your sponsor’s family members from the ceremony, and the nil evidence of the wedding ceremony, some weight’. The delegate also remarked, ‘[t]he limited contact with your sponsor’s family raises concerns that they do not regard you and your sponsor’s relationship as genuine. I give this some weight’.
With respect to the nature of the persons’ commitment to each other, the delegate noted specific evidence that had been submitted but gave greater weight to their finding that they were not satisfied that the decision to marry—having first met in May 2017, become engaged three to four weeks later and then married in July 2017—reflects the level of consideration that is usual between two persons making a genuine and lifelong commitment to each other. The delegate went on to say:
Given your history of breaching your visa conditions and only regulating your status after you had secured a sponsor, and your responses at interview, I am concerned of your commitment to the relationship. Given the serious concerns raised throughout this record, I find it likely that your relationship is contrived to facilitate gaining residence in Australia.
The delegate concluded by stating:
The rapid development of your relationship is of significant concern. Your immigration history and how your relationship with your sponsor developed is also of significant concern. Your divorce order with your previous spouse, appeared to be obtained on fraudulent grounds, raises significant concerns regarding the remaining evidence submitted in this application. I am not satisfied that the nature of commitment evidenced gives strong support for the existence of a genuine and continuing relationship between you and your sponsor.
On 30 April 2020, the review applicant applied to the Tribunal for review of the delegate’s refusal decision. The review applicant was represented in relation to the review.
On 23 May 2024, the review applicant appeared, in person, before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence, by telephone, from the visa applicant from Vietnam. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The interpreter also attended the hearing in person. The representative also attended the hearing in person. As the hearing could not be completed within the allocated time, the hearing was adjourned.
On 28 May 2024, the Tribunal received oral evidence by telephone from the secondary visa applicants in Vietnam. Again, the Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The review applicant, the visa applicant, the representative and the interpreter all attended this hearing by telephone.
On 18 June 2024, the Tribunal wrote to the review applicant to invite him to comment on or respond to information pursuant to s 359A of the Act. The Tribunal informed the review applicant that the comments or response should be received by 2 July 2024, or an extension of time should be received by that date.
The review applicant submitted his response on 1 July 2024.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue for determination in this matter is whether, at the time of application on 15 November 2018, the visa applicant was the spouse of the review applicant. As has been explained, the delegate was not so satisfied.
Evidence of events subsequent to the visa application is relevant if it ‘tends logically to show the existence or non-existence of facts relevant to the issue to be determined’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. In making findings about the status of the parties’ relationship at the time of application, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application.
In the circumstances of this case, the Tribunal considers that it is appropriate to make findings about cl 309.221 (a time of decision criterion) as well.
Whether the parties are in a spouse or de facto relationship
Clause 309.211(2) and cl 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.
The visa applicant claims to be the spouse of the review applicant who is an Australian citizen. The Department’s file contains a copy of the review applicant’s certificate of Australian citizenship as well as copies of the bio-pages of his Australian passports. From the evidence before it, the Tribunal is satisfied that the review applicant is an Australian citizen.
‘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 a married couple 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 about these matters, regard must be had to all 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 reg 1.15A(3), which is extracted in the attachment to this decision.
Each specific matter contained in reg 1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The review applicant and the visa applicant married each other in [Victoria] [in] July 2017. A certified copy of the ‘decorative’ Certificate of Marriage is on the Department’s file. The delegate was satisfied that the marriage was valid and there is nothing in the information before the Tribunal to cast doubt on the validity of the marriage. 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 spouse relationship met?
In order to make the requisite findings about the reg 1.15(3) matters and the s 5F(2)(b)–(d) requirements, the Tribunal has had regard to all the documents on the Department’s file and on the Tribunal’s file and the oral evidence given at the hearing held on 23 and 28 May 2024. The Tribunal notes that it has a greater amount of evidence in respect to the issue for determination than what had been before the delegate.
The non-disclosure certificate said to be made pursuant to s 376 of the Act
The Tribunal’s file contains a non-disclosure certificate said to be made pursuant to s 376 of the Act. The certificate contains both a date and a signature by the delegate, as required by El Jejieh v Minister for Home Affairs (No 2) [2019] FCCA 840. The certificate is signed and dated 12 June 2020. This certificate relevantly states:
In Confidence folios
I notify the Administrative Appeals Tribunal that s 376 applies to:
the document(s)/information contained in the highlighted sections of folio 158 of file number [number] because it was given to the Minister, or to an officer of the Department, in confidence, and section 375A does not apply.
With respect to this certificate, the Tribunal must:
- assess the validity of the certificate;
- accord procedural fairness, including disclosing the existence of the certificate to the review applicant, providing him with a copy of the certificate and affording him with an opportunity to make submissions about the validity or otherwise of the certificate because if the Tribunal determines that the certificate is not valid, it may disclose the documents or information to the review applicant;
- if the Tribunal considers the certificate to be validly made, afford the review applicant an opportunity to seek a favourable exercise of the discretion in s 376(3)(b), that is, the Tribunal’s discretion to disclose, to the review applicant, the information subject to the s 376 certificate; and
- comply with the procedural code, including complying with s 359A or s 359AA, that is, giving the review applicant clear particulars of information that is adverse to the case and inviting her to comment on or respond to the information.
The Tribunal’s first task is to assess validity. The Tribunal considers that the certificate is validly made.
The Tribunal did not provide the review applicant with a copy of the certificate or discuss the content of the certificate with him at the hearing because the Tribunal has reviewed the highlighted sections of folio 158 and has formed the view that none of that information is relevant to the review.
The s 359A letter
As noted, on 18 June 2024, the Tribunal sent a s 359A letter to the review applicant. This letter relevantly stated the following.
In conducting the review, we are required by the Migration Act 1958 (the Act) to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.
Information on the Department’s file
The Department’s file contains some information which suggests inconsistencies in the evidence or may otherwise be considered adverse to the case.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are that:
·In your and [the first named visa applicant]’s statutory declarations made on 9 October 2018 you each declared that the person who had introduced you was [Ms A], yet you provided a Form 888 statutory declaration where the person who claims to have introduced you said that her name is [Ms B].
·In [the first named visa applicant]’s telephone interview with the Department on 20 November 2019 she was asked how it was that she knew you. The written record of the interview on the Department’s file records her as saying words to the effect:
May 2017, my aunt [Ms C] took me to the hair dressing shop of [Ms D] who learnt of my situation and she called the friend of her husband, [the review applicant] (he is now my current husband). We talked and was attracted to each other at the first sight. Next day, [Ms D] invited me to join a party attended by her husband and his friends including [the review applicant] as they have common friends. [Ms D] introduced me to [the review applicant]’s friends and she clearly told [the review applicant] about my status of overstayed visa. We started dating.
If [the first named visa applicant]’s primary reason for being in the relationship with you was so that she can secure a positive migration outcome, this would be inconsistent with your assertion, by the fact of filing the sponsorship for a partner to migrate to Australia (Form 40SP) and this review application, that the primary purpose the two of you have, in pursuing the application, is to be genuine and continuing spouses.
This information is relevant to the review because it may cause the Tribunal to impugn the general credibility of you and [the first named visa applicant]. If the Tribunal relies on this information in making its decision, it may conclude that the relationship is not genuine and continuing and accordingly that [the first named visa applicant] does not meet s 5F(2)(c)—one of the four requirements for a ‘married relationship’, for the purposes of the Act. The consequence of this information being relied upon would mean that the Tribunal could not find that [the first named visa applicant] meets cl 309.211(2) and cl 309.221 of Schedule 2 to the Migration Regulations 1994.
Evidence given at the hearing on 23 May 2024
At the hearing on 23 May 2024, the Tribunal observed a number of inconsistencies between documentary evidence provided or between oral evidence provided by you and [the first named visa applicant] about matters that it would be expected that you would be consistent.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are that:
·[The first named visa applicant] told the Tribunal that friends and family had attended both the marriage ceremony which she said was [in] July 2017 and the wedding reception, which she said was on 10 August 2017. However, in both your and [the first named visa applicant]’s statutory declarations made on 9 October 2018 you each declared that your wedding was held [in] June 2017 at [the named] Restaurant and that you both signed your marriage certificate with a licensed celebrant [in] July 2017.
·When asked at the hearing about who had cleaned the home when you lived together in Australia, you told the Tribunal that [the first named visa applicant] had done this. By contrast, [the first named visa applicant] said that cleaning had been shared between herself, you and her aunt.
·When asked at the hearing about with whom [the first named visa applicant] lived in Vietnam, you told the Tribunal that [the first named visa applicant] was living with her mother and her two children, and you said that [the first named visa applicant]’s father does not live there as he had left and returned to his own village. By contrast, [the first named visa applicant] said that she lives with both her parents and that usually her children live in Saigon/Ho Chi Minh City where they study.
·When asked at the hearing about the frequency of your contact when living in different countries, you described the contact as being ‘every day, every night’ which the Tribunal understands to be twice a day whereas [the first named visa applicant] said that you called her ‘once a day or every two days’.
·At the hearing, you told the Tribunal that you had not told your children about your relationship with [the first named visa applicant] because you were concerned that it would make them sad. By contrast, [the first named visa applicant] told the Tribunal that she had met your children and she said that your children knew that the two of you are married.
This information is relevant to the review because to meet the definition of ‘spouse’ under s 5F of the Act, you must be in a ‘married relationship’. One of the four requirements for a ‘married relationship’, for the purposes of the Act, is that the relationship is genuine and continuing: s 5F(2)(c). The matters upon which you and your wife appear to be inconsistent are matters about which parties in a genuine and continuing spousal relationship would be expected to be consistent.
If the Tribunal relies on this information in making its decision, it may conclude that [the first named visa applicant] does not meet one of the mandatory criteria for a spousal relationship within the meaning of s 5F of the Act. The consequence of this information being relied upon would mean that the Tribunal could not find that [the first named visa applicant] meets cl 309.211(2) and cl 309.221 of Schedule 2 to the Migration Regulations 1994.
You are invited to give comments on or respond to the above information in writing.
The response to the s 359A letter

As noted, on 1 July 2024, the review applicant responded in writing to the s 359A letter. The review applicant submitted his statutory declaration made on 28 June 2024 (both in Vietnamese and certified English translation) and the visa applicant’s statutory declaration made on 27 June 2024 (both in Vietnamese and certified English translation).
The Tribunal has reflected on the response given. The Tribunal accepts the veracity of the comments made by both the review applicant and the visa applicant in their statutory declarations. Accordingly, none of the matters particularised in the Tribunal’s s 359A letter are the reason, or a part of the reason, for the Tribunal to affirm the decision under review.
Regulation 1.15A(3) matters
The financial aspects of the relationship
Any joint ownership of real estate or other major assets, any joint liabilities, the extent of any pooling of financial resources, whether one person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day-to-day household expenses are relevant matters to consider when assessing the financial aspects of the relationship.
At the hearing, the Tribunal asked both the review applicant and the visa applicant for some details of their employment and knowledge of the other person’s employment.
The review applicant gave oral evidence that he was not working but when he had been working, he had worked in clothing manufacturing. He said that the visa applicant would not know details such as the name of his last employer and when he had stopped working there because it was ‘a long time ago’. When the Tribunal asked the visa applicant for details of the review applicant’s employment, she said that he was not working but that she did not know his former occupation or where he had last worked because ‘I did not ask, and he did not say’.
The visa applicant gave oral evidence that she was not working as she was caring for her elderly parents. When asked about her previous occupation, she told the Tribunal that she had sold items in a shop, which the Tribunal understood to be a type of convenience shop. The Tribunal asked her when she had stopped working there and she said that it had been a long time ago, before she had visited Australia. When asked, she said that the review applicant would not know details of her previous employment. However, the review applicant gave oral evidence that the visa applicant had worked as a casual trader of small goods, but he said that he thought that, since he had been remitting money to her, she had not been trading. When asked, he said that, if the visa was granted, it was proposed that the visa applicant would work in Australia. Later in the hearing, the visa applicant also told the Tribunal that, if she was granted the visa, she would try to find a job in Australia.
The Tribunal accepts the review applicant’s and the visa applicant’s oral evidence in this regard and finds that, at the time of this decision, neither person is employed.
There is no evidence before the Tribunal that, either at the time of application for the visas or at the time of this decision, the review applicant and the visa applicant jointly owned or own real estate or other major assets; that they had or have any joint liabilities; or that one person in the relationship owed or owes any legal obligation in respect of the other. This is unsurprising given that, presently, the review applicant and the visa applicant live in different countries, and neither is employed.
With respect to any pooling of financial resources, the visa applicant told the Tribunal that, when they had lived together in Australia, they had a joint bank account and that both of them had deposited money into that account. She said that, since she has lived in Vietnam, she has not deposited money into the joint bank account but that the review applicant continues to deposit money into the account.
The Tribunal notes that the primary decision states that evidence of the joint bank account had been provided for the period from June 2017 to May 2019 and that ‘[t]hese statements display a number of transactions including cash deposits and some debit purchases’ and that it appeared that the joint account was used regularly when the visa applicant was in Australia. The Tribunal notes that the evidence of the joint bank account that had been before the delegate at the time of the primary decision was not included in the copy of the Department’s file that was provided to the Tribunal. This is unfortunate. While the Tribunal has not been able to view this evidence, it gives weight to the fact that such evidence was provided to the Department.
In this review, the review applicant filed statements for the joint bank account for the periods:
·     1 February 2020–31 March 2020;
·     1 May 2020–30 June 2020;
·     1 July 2021–31 October 2022;
·     1 December 2022–31 March 2023; and
·     1 May 2023—31 March 2024.
The Tribunal notes that the visa applicant was offshore for all these periods. The statements evidence use of the account even though the visa applicant has been offshore. The Tribunal finds that the documentary evidence filed in this review supports some of the visa applicant’s oral evidence given at the hearing.
The Tribunal gives some weight to the evidence that the parties have an Australian joint bank account.
The Tribunal notes that the primary decision also states that several money transfers totalling approximately AUD 7,750 had been submitted to the Department. As was the case with the bank statements that had been submitted to the Department, copies of these money transfers were not included in the copy of the Department’s file that was provided to the Tribunal. Notwithstanding, the Tribunal gives weight to the fact that such evidence was provided to the Department.
At the hearing, the Tribunal noted the documentary evidence that had been submitted evidencing that the review applicant has sent money to the visa applicant and asked each party to tell the Tribunal about that. The review applicant told the Tribunal that, generally, he sends money to the visa applicant once per month but that, if she needed more money, he would send extra. He said that he had been sending money to the visa applicant since 2018. The visa applicant gave consistent oral evidence, telling the Tribunal that the review applicant sent her a few hundred dollars every month or so. When asked why she was sent the money, she replied that it was the review applicant’s gift to her so that she could provide for her elderly parents and for her children.
In this review, the review applicant submitted a great number of money transfers for various dates in 2019, 2020, 2021, 2022, 2023 and 2024. These transfers total approximately AUD 15,500. This documentary evidence corroborates the parties’ consistent oral evidence that the review applicant has been sending money to the visa applicant in Vietnam on a consistent basis for many years. The Tribunal accepts and gives weight to this evidence.
The Tribunal asked the parties whether, when they had lived together, there had been any sharing of day-to-day household expenses. The review applicant gave oral evidence that he had paid for everything. The visa applicant said that, when they are together, they share expenses. The Tribunal notes that the Department’s file contains two gas bills in joint names, addressed to the parties at the claimed marital home in Australia with due dates in October 2017 and May 2018 as well as one electricity bill in joint names, addressed to the parties at the claimed marital home in Australia with a due date in October 2017. This documentary evidence suggests that day-to-day household expenses were shared at that time—which was before the visa applicants applied for the visas. There is little documentary evidence about any shared day-to-day household expenses at later points—when they have been living together or travelling together in Vietnam. The Tribunal considers that it cannot make a finding in this regard.
Based on the evidence, the Tribunal finds that, both at the time of application and at the time of this decision, the parties jointly owned and continue to own a joint bank account in Australia. The Tribunal reiterates the delegate’s finding that, when the visa applicant lived in Australia, the joint account was used regularly. The Tribunal notes that, since the visa applicant has left Australia, the review applicant continues to use the account, as claimed by the visa applicant. The Tribunal also finds that the review applicant has been consistently sending money to the visa applicant in Vietnam for many years. The Tribunal gives weight to the evidence that suggests that the review applicant and the visa applicant pool their financial resources, to some extent. The Tribunal considers that the evidence of the financial aspects of the relationship points to the parties being in a spousal relationship both at the time of application and at the time of this decision.
The nature of the household
Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are relevant matters to be considered when assessing the nature of the household.
With respect to any joint responsibility for the care and support of children, the Tribunal notes that the review applicant and the visa applicant do not have any biological children together. The evidence is that they each have children from previous relationships.
At the hearing, the Tribunal asked the review applicant about his relationship with his wife’s two children. He said that, when he has been in Vietnam, sometimes he has taken them out for dinner. He also noted that he called them on the telephone. The visa applicant told the Tribunal that her children love the review applicant and support the relationship.
The Tribunal notes that the confidential supplementary psychological report that was prepared by [Dr E] in respect of the review applicant on 16 July 2021 stated that ‘he now is estranged from his four sons’. At the hearing, the review applicant told the Tribunal that he had some contact with his children, noting that, sometimes, they invite him for dinner.
There is no clear evidence before the Tribunal that there is joint responsibility for the care and support of any children. However, the Tribunal notes, accepts and gives some weight to the visa applicant’s oral evidence that some of the money that the review applicant sends to her is so she can provide for her children.
With respect to the living arrangements of the persons, both the review applicant and the visa applicant gave consistent oral evidence that, at the time of the hearing, the review applicant was living at the visa applicant’s aunt’s house in a [named] suburb of Melbourne. The review applicant told the Tribunal that he had lived at the property for seven years. Both persons told the Tribunal that he paid board, with the review applicant telling the Tribunal it was $250 per week for accommodation and food and with the visa applicant saying that it was ‘about $200 or a bit more’.
The review applicant told the Tribunal that, at the time of the hearing, the visa applicant was living in [Village 1] in the [District 1] of the Binh Tuan province, Vietnam. He said that she lived there with her mother and her two children, saying that the visa applicant’s father does not live there as he had left and returned to his own village.
The visa applicant gave somewhat different oral evidence about her living arrangements. She said that she lives with both her parents and that usually her children live in Saigon/Ho Chi Minh City where they study but that at the time of the first hearing, she had recalled them home so that they could attend the hearing.
As noted above, this apparent difference in the oral evidence was put to the review applicant for comment in the s 359A letter. As was also noted above, the Tribunal accepts both the review applicant’s and the visa applicant’s explanation about the review applicant’s misunderstanding.
Both the review applicant and the visa applicant gave consistent oral evidence that they had lived together in both Australia and Vietnam. The review applicant told the Tribunal that, in Australia, they had lived together at the visa applicant’s aunt’s house until the visa applicant returned to Vietnam. He said that he and the visa applicant had also lived together ‘like husband and wife’ every day during both of his trips to Vietnam in 2018 and 2019. The visa applicant told the Tribunal that, when the review applicant had travelled to Vietnam, they had lived in her house.
When asked about their plans for living arrangements if the visa was granted, both the review applicant and the visa applicant told the Tribunal that they would rent a house together. The review applicant added that, if the visa applicant was able to bring money from Vietnam, they would buy a house.
With respect to any sharing of the responsibility for housework, the review applicant and the visa applicant gave broadly consistent oral evidence about the arrangements in both Australia and Vietnam and about their plans for future arrangements.
With respect to when they had lived together in Australia, the review applicant and the visa applicant both told the Tribunal that the visa applicant’s aunt had cooked. The visa applicant also told the Tribunal that she had cooked during this period. The review applicant told the Tribunal that the aunt and the visa applicant had shopped for groceries. The visa applicant did not give oral evidence about the responsibility for grocery shopping in Australia. With respect to cleaning when living together in Australia, the review applicant told the Tribunal that the visa applicant had done this. By contrast, the visa applicant said that cleaning had been shared between herself, her husband and her aunt. Again, this apparent difference in the oral evidence was put to the review applicant for comment in the s 359A letter. Also as was noted above, the Tribunal accepts both the review applicant’s and the visa applicant’s explanation.
With respect to when they had lived together in Vietnam, the review applicant and the visa applicant both told the Tribunal that the visa applicant had done the cooking. The review applicant added that the visa applicant’s mother was too old to do the cooking. He also told the Tribunal that the visa applicant had done the cleaning. The Tribunal did not ask the visa applicant about who had done the cleaning in Vietnam.
When asked about their plans for the responsibility for housework if the visa was granted, the review applicant said that they would share the responsibility because they were husband and wife. Similarly, the visa applicant said that they had talked about this and that, in respect of cleaning, whoever had the time would do this and that the review applicant could help her with the cooking.
The Tribunal considers that the evidence of the nature of the household is understandably limited given that the review applicant and the visa applicant live in different countries. Notwithstanding, the evidence which is available about the times when the parties have been together in the same country is suggestive of a spousal relationship, both at the time of application and at the time of this decision. The Tribunal gives some weight to this evidence.
The social aspects of the relationship
Whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.
With respect to whether the persons represent themselves to other people as being married to each other, the visa applicant told the Tribunal that friends and family had attended both the marriage ceremony and the wedding reception. The review applicant gave oral evidence that the people who attended the wedding were not his close friends because he does not have many friends. Later, he explained that he does not have many friends because he is not ‘a drinker’.
The Tribunal notes and gives weight to the declaratory evidence of the family members and friends who had attended the wedding such as the visa applicant’s cousin [Ms F].
The review applicant told the Tribunal that, after marrying, he had travelled to Vietnam with the visa applicant’s aunt to visit the visa applicant’s family. He said that later, when both he and the visa applicant had travelled to Vietnam, they had both gone to visit each other’s family. He said that there were photographs of these meetings. Similarly, the visa applicant gave oral evidence that when they were in Vietnam together, they had met up with her friends for meals.
The Tribunal noted, to the review applicant, that he did not have any witnesses (other than the secondary visa applicants) attend the hearing to give oral evidence in support of the relationship and queried why this was. He said that it was because he does not have friends and that, any friends he does have are busy on weekdays. Later, when the Tribunal asked him to name his closest friend, he said that it was [Mr G]. The Tribunal then asked why [Mr G] had not made a statement in support of the relationship. The review applicant said that it is because [Mr G] is a relatively recent friend. He explained that he had met him at a party and then they had become friends.
The Tribunal asked both parties whether the review applicant’s family and friends approved of the relationship. Both gave consistent oral evidence that they did. The review applicant told the Tribunal that they were supportive of the relationship and like the visa applicant ‘because she is a good person’. The visa applicant noted that the review applicant’s family were ‘all in Da Nang’. She said that they were supportive of the relationship.
With respect to the opinion of the persons’ friends and acquaintances about the nature of the relationship, the Tribunal notes that when the matter had been before the delegate, the visa applicant had submitted the following witness statements and statutory declarations, for which the delegate had given some weight.
·Form 888 statutory declaration made by [Ms C] (the visa applicant’s aunt with whom they had resided) [partial copy only – date not discernible];
·Form 888 statutory declaration made by [Ms B] (a friend of the visa applicant’s aunt; she is the person who introduced the parties) [partial copy only – date not discernible];
·Signed statement made on 16 April 2018 by [the third-named visa applicant] (in Vietnamese and accredited English translation provided);
·Signed statement made on 17 April 2018 by [the second-named visa applicant] (in Vietnamese and accredited English translation provided);
·Signed statement made on 16 April 2018 by [the visa applicant’s mother] (in Vietnamese and accredited English translation provided);
·Signed statement made on 16 April 2018 by [the visa applicant’s father] (in Vietnamese and accredited English translation provided);
·Undated, signed statement made by [the visa applicant’s younger brother] (in Vietnamese and accredited English translation provided);and
·Signed statement made on 29 March 2018 by [the visa applicant’s younger sister] (in Vietnamese and accredited English translation provided).
The Tribunal notes a number of issues with some of these statements and declarations. For example, the statements from the visa applicant’s mother, father, younger brother, younger sister, son and daughter are in near identical terms. The Tribunal would also have liked to have the opportunity to ask the matchmaker, [Ms B], what she meant when she declared, ‘Her niece name is [Ms H]. [Ms H] spoke to me about her situation and I felt sorry for her, so I introduce her to my long time friend [the review applicant], who is single’. Notwithstanding the limitations, like the delegate, the Tribunal gives some weight to the statements and statutory declarations that were submitted to the Department.

In this review, the review applicant submitted the following statements and declarations:
·Signed statement (in Vietnamese and translated into English) made by [the second-named visa applicant];
·Signed statement (in Vietnamese and translated into English) made by [the third-named visa applicant];
·Signed statement (in Vietnamese and translated into English) made by [the visa applicant’s father];
·Form 888 statutory declaration made by [Ms B] (the mutual friend who introduced the parties) on 1 May 2023;
·Form 888 statutory declaration made by [Ms F] (the visa applicant’s cousin) on 2 May 2023; and
·Form 888 statutory declaration made by [Ms I] (the visa applicant’s cousin) on 3 May 2023.
In addition, the Tribunal heard the oral evidence of the two secondary visa applicants at the resumed hearing on 28 May 2024. The Tribunal found that the witnesses’ reasons for considering the relationship to be genuine were well considered. The Tribunal found the witnesses to be credible and gives weight to their evidence.
The Tribunal finds that that the persons represent themselves to other people as being married to each other and that the persons’ friends and family members are of the opinion that they are in a genuine and continuing relationship.
With respect to any basis on which the persons plan and undertake joint social activities, the Tribunal notes the review applicant’s oral evidence that, when the visa applicant had lived in Australia, she would attend the Buddhist temple every weekend. The Tribunal asked him if he had also attended. He said that he did go and that he had been attending for seven years. The visa applicant told the Tribunal that, when the review applicant has visited her in Vietnam, they have gone out to eat with some of her friends. The Tribunal notes that the visa applicant’s oral evidence that they have socialised with others over meals is corroborated by photographic evidence and the evidence of various witnesses. The Tribunal gives weight to this evidence. The Tribunal finds that, when the parties have been together in the same country, they have planned and undertaken a number of joint social activities.
The Tribunal gives weight to the evidence of the social and public recognition of the relationship. The Tribunal considers that this evidence of the social aspects of the relationship points to the parties being in a spousal relationship both at the time of application and at the time of this decision.
The nature of the persons’ commitment to each other
The duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the persons draw from each other, and whether the persons see their relationship as long-term are all matters to be considered in determining the nature of the persons’ commitment to each other.
At the hearing, the review applicant and the visa applicant gave consistent oral evidence that they had first met in person in May 2017. The review applicant said that it was at ‘a party’ at his brother (‘[Mr J]’) and sister’s house. He explained that the person was not his blood sister but rather a friend. The visa applicant told the Tribunal that they had met at ‘[Ms D]’s house’ and that she had attended because her aunt had told her to go. The visa applicant thought that [Mr J] and [Ms D] (the couple at whose home they met) were the review applicant’s closet friends. She said that, at this first meeting, they exchanged telephone numbers and that the relationship developed from there. The review applicant said that he had been introduced to the visa applicant at the party and that after this first meeting, he had invited the visa applicant out for dinner, and they had gone sight-seeing.
The Tribunal noted that the parties were engaged within 3–4 weeks and held their wedding [in] June 2017 and asked each of them ‘why the rush?’ Each person said that it was because they had fallen in love with each other. The visa applicant also explained that it was because the review applicant is ‘pretty old’ and that he wants a wife to live by his side and to care for him. The Tribunal noted that, at the time, the visa applicant’s visa status in Australia was irregular and questioned each of them whether their main reason in marrying was so that the visa applicant could have a successful visa outcome. Each denied that this was so. The review applicant told the Tribunal, ‘no, it was not a reason. We love each other. I love her’. The Tribunal asked the review applicant whether, at the time, he had known about the visa applicant’s irregular visa status. He replied that he had known ‘but I still love her’. The visa applicant said that it was because of the review applicant’s advanced age that he had wanted to move quickly to sponsor her visa. The Tribunal asked the visa applicant what her main reason had been in wanting to marry the review applicant. She replied that it was because they were both getting older and wanting to live together and provide and receive mutual care.
While some may consider such a meeting and fast development of the relationship within a month as improbable, it is not implausible. Having had the opportunity to have heard the parties’ oral evidence from them directly and having accepted the explanations provided in response to the s 359A letter, the Tribunal accepts their evidence as to the inception and development of their relationship. Accordingly, at the time that the visa applicants applied for the visa on 15 November 2018, the review applicant and the visa applicant had been married for one year and four months. At the time of this decision, they have been married for almost seven years. The Tribunal gives weight to the evidence of the duration of the relationship.
At the hearing, the Tribunal noted that it had reviewed both the review applicant’s and the visa applicant’s movement records and that it appeared that they had not seen each other in person for almost five years, with the review applicant’s last trip out of Australia being in late July to late August 2018.
The Tribunal asked the review applicant why he had not visited the visa applicant for so many years. He replied that it was for two reasons. First, the COVID-19 pandemic had disrupted travel plans. He said that the second reason was due to his health condition. He said that he was not very strong and that he was taking medication. When asked for specifics, he said that he has diabetes and that his mental health was ‘not very healthy’. The Tribunal notes that a psychological report, dated October 2018, prepared by [Dr E] in respect of the review applicant is on the Department’s file and that, in this review, a supplementary psychological report, dated 16 July 2021, was submitted. The supplementary psychological report was also prepared by [Dr E] in respect of the review applicant. The Tribunal thanks the review applicant for his openness and honesty in sharing this information with the Tribunal.
The Tribunal asked both the review applicant and the visa applicant whether the review applicant had plans to travel to Vietnam to see the visa applicant. The review applicant told the Tribunal that he was awaiting the outcome of the review before making plans to travel to Vietnam. He said that if the review was successful, he would wait for the visa applicant to come to Australia.
The visa applicant gave similar oral evidence. She said that the review applicant’s plans to visit her had been affected by the COVID-19 pandemic and by the review applicant’s health not being stable. She noted that the review applicant had been ‘infected’ by the virus and that his health had been ‘up and down’. She said that the review applicant had wanted to wait until after the hearing before making travel plans.
Based on all the evidence before the Tribunal, the Tribunal accepts the parties’ consistent claims as to why it is that the review applicant has not visited the visa applicant in Vietnam for almost five years. In this case, the Tribunal considers that the review applicant’s failure to have visited the visa applicant for almost five years is not the reason, or a part of the reason, to affirm the decision under review.
With respect to the length of time during which the persons have lived together, the Tribunal notes the review applicant’s oral evidence at the hearing that, in May 2017, they started living together at the visa applicant’s aunt’s house (in Melbourne) and that they lived there together until the visa applicant returned to Vietnam. He also told the Tribunal that they had lived together in Vietnam, saying that he had lived with her for every day of his trips there in 2018 and 2019. The visa applicant gave consistent oral evidence. The Tribunal accepts the parties’ oral evidence about their claimed living arrangements and gives weight to the length of time during which the persons have lived together.
With respect to the degree of companionship and emotional support that the persons draw from each other, the Tribunal notes that, in the primary decision, the delegate noted that the visa applicant had submitted a psychological report, dated October 2018, from [Dr E] which expresses support for the application for the visas based on the psychological effects that it would have on the review applicant’s emotional and psychological well-being if the review applicant and the visa applicant were to be separated. The delegate gave this evidence some weight. In this review, the Tribunal too gives some weight to this evidence. In addition, the Tribunal gives some weight to [Dr E]’s comments and opinion in her supplementary psychological report in respect of the review applicant that ‘he lives a very isolated and lonely life’, ‘[h]e has struggled mentally from the stress, anxiety and isolation due to the Corona Virus Pandemic’ and that, at that time (mid-July 2021), he had ‘relie[d] on [the visa applicant] for emotional and psychological support’.
At the hearing, the Tribunal asked both the review applicant and the visa applicant if they could give an example of how the other person had provided them with emotional support. The review applicant told the Tribunal that the visa applicant had suggested ways to help strengthen his mental health, such as telling him not to engage in overthinking. The visa applicant told the Tribunal that, in respect of the visa application, they had vowed to ‘appeal, appeal, appeal’ until they were successful. The Tribunal accepts and gives weight to this credible oral evidence.
In this review, the applicants also submitted copies of various birthday cards and correspondence (all in Vietnamese, no English translations having been provided). As the Tribunal was not able to read this evidence, it has been given no weight.
In view of the evidence, the Tribunal finds that there is a degree of companionship and emotional support that the persons draw from each other. The Tribunal gives weight to this evidence.
With respect to whether the persons see their relationship as long-term, both parties gave credible oral evidence that they did see their relationship in that way. The review applicant told the Tribunal that he planned to be with the visa applicant for the rest of his life. He said that he truly loved her and wanted to live with her. He said that he was getting old and needed someone to live with him. The visa applicant told the Tribunal that they genuinely loved each other and were loyal to each other. She said that they missed each other and that she had asked her aunt to look after the review applicant. The Tribunal accepts this evidence.
In this review, the review applicant submitted copies of many of his phone bills which evidence regular phone calls to the visa applicant’s mobile number.
At the hearing, the Tribunal asked the parties about any regular contact with each other when living in different countries. Both the review applicant and the visa applicant gave consistent oral evidence that they keep in contact by way of FaceTime. (The visa applicant also named another [app]). They both told the Tribunal that they were in frequent contact, with the review applicant describing this as being ‘every day, every night’ and the visa applicant saying that the review applicant called her ‘very often’, ‘once a day or every two days’. The review applicant said that they spoke for 10–20 minutes and that once they ran out of things to talk about, they hung up. The visa applicant said that the length of the calls could be 20–30 minutes. The Tribunal accepts the parties’ oral evidence in this respect. The Tribunal is not concerned by the slight differences in the oral evidence as the Tribunal accepts the veracity of the persons’ responses to the s 359A letter. The Tribunal considers the differences to be trivial and that the differences suggest that each party was not giving a rehearsed answer.
In conclusion, the Tribunal notes that, at the hearing, it questioned both the review applicant and the visa applicant about their knowledge of each other and their lives and is satisfied that both persons demonstrated a good knowledge of each other’s life commensurate with a couple in a genuine and continuing relationship. For example:
·Both knew details of the other’s family of origin, with both giving oral evidence that the review applicant was the youngest of [number] children and the only one of his siblings to live in Australia and with both giving oral evidence that the visa applicant is the eldest of [number] children, with her [number] younger siblings being brothers. They each were able to provide additional information when asked. For example, the review applicant told the Tribunal that the visa applicant had met his siblings in Vietnam and the visa applicant told the Tribunal that the review applicant’s siblings live in Da Nang, Vietnam.
·Both gave consistent oral evidence that, when the visa applicant had been living in Australia, the review applicant had gifted her perfume for her birthday. The visa applicant said that, since living in Vietnam, they simply call each other to congratulate the other. The review applicant told the Tribunal that he sends the visa applicant money.
·Both said that the visa applicant enjoys cooking in her spare time. The visa applicant gave further detail about this and also said that she enjoys karaoke. Both also noted that the review applicant attends the Buddhist temple regularly.
·Both named the same two people ([Ms K] and [Mr L]) as being the visa applicant’s closest friends in Vietnam.
The Tribunal has taken account of the parties’ respective ages, backgrounds and life experiences and finds that both at the time of application and at the time of decision, neither party was nor is in a relationship with any third party.
The Tribunal places weight on the evidence of the nature of the persons’ commitment to each other at all relevant times. The Tribunal considers that this evidence is suggestive of the parties being in a spousal relationship at all relevant times.
Other matters—the letter to the payroll officer, dated 13 June 2017
At the hearing, the Tribunal referred the review applicant and the visa applicant to comments made by the delegate in the primary decision about a letter to the payroll officer, dated 13 June 2017. The delegate had discussed this issue when considering the financial aspects of the relationship and had stated:
You have provided a letter from you to your payroll officer, dated in June 2017, instructing them to input your salary into you and your sponsor’s joint bank account. However, at interview, you stated that you had only worked for your family and had never worked for an organisation in Australia. When asked why you submitted this document, you stated that you did not know and you only helped your family. This raises concerns that this document was generated for the purposes of this application. As such, I give it little weight.
The Tribunal noted, to the review applicant, that this document had been discussed in the written submissions of 22 May 2023. The representative had submitted:
The decision maker refers to a letter from ‘the Applicant’ to the payroll officer, dated June 2017, however that letter is from the Sponsor advising of change of account details for Centrelink payments, not the Applicant. In her interview the Applicant stated that she had never worked in Australia and had only helped family, which was correct. Therefore, any concerns about this document were unfounded and incorrect.
The Tribunal explained to the review applicant that the presiding Member had reviewed the Department’s file and that the letter is from the visa applicant.
Using the process in s 359AA of the Act, the Tribunal put its concerns about the document to the review applicant for comment or response. The presiding Member explained that she had observed, in another file, an identical letter apart from the personal details. The Tribunal explained that the headings, words (apart from the personal details), font and spacing were identical. The Tribunal explained its concern that the letter submitted in the present case may not be a genuine document and that this information is relevant to the review because if the Tribunal finds that it is not a genuine document, it may doubt the genuineness of the claimed spousal relationship. The Tribunal also explained the consequences of the Tribunal relying upon on the information and also informed the review applicant that he could respond immediately or could request further time in which to respond.
The review applicant said that he would respond immediately. He responded that he did not know and could not explain. The Tribunal accepts that, since the document is in the visa applicant’s name alone, the review applicant may have no knowledge of this document.
When the Tribunal officer raised the issue with the visa applicant, she similarly told the Tribunal that she had no idea about the document. She said that she could not remember. While the Tribunal does not expect the visa applicant’s recollection to be perfect, the Tribunal is concerned that she has provided a document to the Department which she continues to state she has no idea about.
Notwithstanding, the Tribunal considers that, in view of the other evidence in this case, the provision of this letter to the Department is not a reason, or a part of the reason, for the Tribunal to affirm the decision under review.
CONCLUSION
As stated above, the Tribunal is satisfied that the parties are validly married, as required by s 5F(2)(a) of the Act.
For the reasons given with respect to the reg 1.15A(3) matters, the Tribunal is satisfied that, at both the time of application and at the time of this decision, the review applicant and the visa applicant:
·had and have a mutual commitment to a shared life as husband and wife to the exclusion of all others, as required by s 5F(2)(b) of the Act;
·had and have a genuine and continuing relationship, as required by s 5F(2)(c) of the Act; and
·did not and do not live separately and apart on a permanent basis, as required by s 5F(2)(d)(ii) of the Act.
Based on the above, the Tribunal is satisfied that the requirements of s 5F(2) were met at the time the visa application was made and are met at the time of this decision. Therefore, the visa applicant meets cl 309.211 and cl 309.221.
As the Tribunal has found that the visa applicant meets the criteria in cl 309.211 and cl 309.221, the ability of the secondary visa applicants to satisfy the criteria for the grant of the visas should also be reconsidered.
Given the findings above, the appropriate course is to remit the application for the visas to the Minister to consider the remaining criteria for a Subclass 309 visa.
DECISION
The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first-named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl 309.211 of Schedule 2 to the Regulations; and
·cl 309.221 of Schedule 2 to the Regulations.
Justine Clarke
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).