Chuong (Migration)

[2024] AATA 731

Chuong (Migration) [2024] AATA 731 (27 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Vinh Long Chuong

VISA APPLICANTS:  Ms Thi Huong Hoang
Mr Hoang Tuan Khang Nguyen

REPRESENTATIVE:  Ms Jennifer Nguyen (MARN: 2117717)

CASE NUMBER:  1837126

DIBP REFERENCE(S):  BCC2018/1212791

MEMBER:Deputy President Justin Owen

DATE:27 March 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.

Statement made on 27 March 2024 at 11:05am

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – lengthy relationship – no pooling of financial resources – visa applicant has no relationship with the sponsor’s children – sponsor’s visits to Vietnam – relationship not declared to government agencies – inconsistent evidence of first meeting – decision under review affirmed   

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 309.211, 309.221, 309.321; r 1.15

CASES

He v MIBP [2017] FCAFC 206

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 Home Affairs on 29 October 2018 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (the Act).

2. The first named visa applicant (the visa applicant) applied for the visa on 14 March 2018 on the basis of her relationship with her sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). 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 visas on the basis that the visa applicant did not satisfy cl 309.211(2) because they were not satisfied the applicant was a spouse or de facto partner of the sponsor at the time of application.

4. On 23 January 2024 the review applicant was invited to a hearing.  SMS reminders were sent to the mobile number provided in the application on 31 January 2024 and 6 February 2024.  The Tribunal also took the liberty to send via express post a courtesy copy of the hearing invitation to the review applicant directly on 2 February 2024.  The Tribunal also attempted to contact the review applicant’s representative by telephone to remind them of the hearing on multiple times on 5 February 2024.  The representative’s telephone was eventually answered by Ms Nguyen, who subsequently became the review applicant’s new representative.  She requested to postpone the hearing.  The Tribunal refused the request, but gave the review applicant a further two weeks post-hearing to make further submissions.  The Tribunal considers it made considerable and extensive efforts to ensure the review applicant was aware of the hearing. The Tribunal was satisfied the review applicant was aware of the hearing, and provided time to make further submissions.  The Tribunal notes that the review applicant and his brother did in fact attend the hearing in person and the visa applicant attended via video.  The applicant’s new representative also attended the hearing by video (she is Melbourne-domiciled).  Written submissions were filed post-hearing.  The Tribunal is satisfied the review applicant was given every opportunity to present his case and submit evidence to the Tribunal.      

5. The review applicant appeared before the Tribunal on 7 February 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Thi Huong Hoang, who is the visa applicant and the review applicant's wife and Mr Vinh Phuc Chuong, who is the review applicant’s brother.   

6. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the visa applicant was in a genuine spousal relationship with the sponsor at the time of application, as well as at the time of decision.  

   Whether the parties are in a spouse or de facto relationship

9. Clause 309.211(2) requires that, at the time the visa application was made, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. With limited exceptions that only apply in relation to a decision to grant or not grant a Subclass 309 visa made on or after 20 August 2022, the visa applicant must continue to be the spouse or de facto partner at the time of the Tribunal’s decision: cl 309.221. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

10. ‘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 of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in            reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters 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?

11. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.  The visa applicant provided a certified copy, as well as an English translation, of a Vietnamese marriage certificate dated 30 December 2015.  The certificate states the marriage is registered in the Marriage Registration Book and signed by Deputy Chairman Le Van Ngoan.  Deputy Chairman Le Thi My attested the certificate as an authentic copy on 29 September 2017.  The Tribunal accepts the marriage certificate is genuine. 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?

    Financial aspects of the relationship

12. In respect of the financial aspects of the relationship between the visa applicant and review applicant, the Tribunal has considered the joint ownership of real estate or other major assets; joint liabilities; the extent of any pooling of financial resources; and any legal obligations owed to the other party; and any sharing of day-to-day expenses.

13. The Tribunal notes the visa applicant and the review applicant failed to provide any evidence concerning the financial aspects of their relationship to the delegate. 

14. No further evidence was provided to the Tribunal prior to the hearing.  Despite the parties having had over 5 years to provide such evidence after seeking review at the Tribunal, the Tribunal provided the parties with a further 2 weeks to provide any evidence they wished to rely on post-hearing.

15. The review applicant stated at the Tribunal’s hearing that he and the visa applicant have no joint ownership of real estate or other major assets; no joint liabilities; and neither party owes any legal obligation in respect of the other. 

16. The Tribunal finds the parties have no joint ownership of real estate or other major assets; no joint liabilities; and neither party owes any legal obligation in respect of the other. The Tribunal acknowledges the visa applicant is living offshore so gives these matters lesser weight. 

17. The Tribunal has considered the extent of any pooling of financial resources, especially in relation to major financial commitments.  The review applicant stated that he and the visa applicant have never established a joint bank account. At the Tribunal’s hearing the review applicant stated he would financially support the visa applicant by providing cash to the visa applicant’s aunt in Australia who would then pass the funds on. In the visa applicant’s testimony, she said however the review applicant would support her by giving cash directly to her and by buying items for her.  The Tribunal put the inconsistency to the review applicant under the relevant provision.  No response to the Tribunal’s specific concern has been received.  The Tribunal does not accept the review applicant and visa applicant have pooled their financial resources as each party claimed at the Tribunal’s hearing.

18. The Tribunal finds there is no evidence of any other pooling of financial resources.  The Tribunal finds the parties have not pooled their financial resources, including in regard to major financial commitments. There is no evidence of any other pooling of financial resources either at the time of application or at the time of decision.  There is no pooling of finances whether it be for savings, rent or day-to-day living expenses. 

19. In relation to the sharing of day-to-day household expenses, the review applicant stated that he and the visa applicant shared a household in Vietnam in late 2019 for several months, whilst there are earlier claims they spent time together in 2016 and 2017 in Vietnam. He intimated he was meeting costs the parties incurred during this period.  The review applicant stated there was no evidence of any financial support  at the time of decision.  The Tribunal notes the evidence that the review applicant last met with the visa applicant some 4 years ago, in 2020.  There is no evidence of any pooling of financial resources, or of him sending funds to the visa applicant during this period.  The Tribunal finds there is no sharing of day-to-day household expenses either at the time of application or the time of decision. 

20. There is no satisfactory evidence before the Tribunal pertaining to the financial aspects of the parties’ relationship.  Whilst the Tribunal acknowledges the parties have been apart for some years and live in different countries, the Tribunal considers the paucity of evidence before it of any pooling of financial resources or commitments of any significant kind after a relationship which is purported to have occurred now over many years to speak to the genuineness of the parties’ claims. 

21. The Tribunal’s concerns as to the genuineness of the parties’ claims, when considering the financial aspects of the relationship, are highlighted by the inconsistencies concerning the visa applicant’s weekly salary.  The review applicant stated the visa applicant earned 7 million Vietnamese dong each week.  The visa applicant however stated she earns 10 million Vietnamese dong per week.  The Tribunal considers the discrepancy is significant, even taking into account the parties do not live together, given they claim to have been in a genuine and ongoing spousal relationship now for many years.  The Tribunal put the inconsistency to the review applicant and visa applicant under s359A.  The visa applicant responded that her estimate had been an average based on one year.  She also raised her nervousness and stress at the hearing.  The Tribunal considers its question was basic and straightforward, even taking into account any nervousness.  The Tribunal is not satisfied with the explanation, particularly given there are multiple contradictions in the testimony at the Tribunal’s hearing. The Tribunal considers the contradiction speaks to the genuineness of the parties’ claims concerning the financial aspects of the purported relationship.  

22. The Tribunal finds that at the time of application and the time of decision the parties do not have any joint ownership of real estate or other major assets or any joint liabilities. The Tribunal finds the parties do not pool their resources, including in relation to major financial commitments.  The review applicant and visa applicant do not owe any legal obligation in respect of the other both at the time of application and the time of decision. There is no satisfactory evidence from either the time of application or the time of decision before the Tribunal to suggest there is any genuine sharing of day-to-day household expenses or pooling in relation to major commitments.  The Tribunal notes the inconsistent evidence at its hearing concerning financial support provided by the review applicant to the visa applicant and the lack of an explanation for the inconsistency.     

23. On the basis of all the above evidence, the Tribunal finds that the review applicant and visa applicant have not shared financial responsibilities or joined their finances. The Tribunal notes that the parties claim to have been together in a relationship since 2014, now over a decade. The Tribunal is not satisfied that the evidence of the financial aspects of the review applicant and visa applicant’s relationship is indicative of a spousal relationship either at the time of application or the time of decision, even taking into account the location of the respective parties and the potential past impediments such as the COVID-19 pandemic and the closure of international borders.    

    Nature of the household

24. The Tribunal has considered the nature of the parties’ household, including any joint responsibility for the care and support of children; the parties’ living arrangements; and any sharing of housework.

25. The Tribunal notes the review applicant has three children from a previous relationship.  In the review applicant’s testimony to the Tribunal he stated the visa applicant has no relationship with his three children. In the visa applicant’s testimony however she stated her relationship with the review applicant’s children was ‘normal’.  The Tribunal put the discrepancy to the parties under s359A.  The visa applicant in written submissions post-hearing stated she doesn’t have much connection with the three children as they are mature, occupied with work, and live far away from her which has been an impediment in strengthening family links.  The Tribunal has taken into account the visa applicant’s explanation, but considers the contradiction speaks to its broader concerns as to the veracity of the claimed relationship.  The Tribunal notes the review applicant very plainly stated the visa applicant has no relationship with his children. Given they are older and living in another country, the Tribunal accepts that it may well be that there is a very limited relationship between the visa applicant and the review applicant’s children.  The Tribunals greater concern is the visa applicant’s pronouncement – and inference – that she had a ‘normal’ relationship with the children.  She stated her role was the same as that of her husband, the review applicant.  The Tribunal considers the response ultimately is an attempt to mislead the Tribunal into believing she has an ongoing ‘normal’ relationship with the review applicant’s children when the reality is that she does not after a relationship of over a decade.  This is relevant to credibility.  The Tribunal finds there is no joint responsibility for the care and support of children

26. The Tribunal has considered the parties’ purported living arrangements.  The Tribunal notes that at the time of decision it has been over 4 years since they claim to have physically met with each other. 

27. The Tribunal notes the evidence from the time of application that between April and June 2016, and July and September 2016, the visa applicant and review applicant were registered at the visa applicant’s Hai Duong City address.  The parties have also provided to the Tribunal post hearing registrations for a one week period in January 2017, a period in February 2016; the period January to April 2015; and December 2015 to March 2016.  The review applicant stated that he and the visa applicant had also stayed at his mother’s house in Saigon.      

28. The Tribunal notes the parties provided post-hearing some uncaptioned photographs of themselves together in Vietnam.  There are also a number of statutory declarations provided post-hearing from individuals that purport to have spent time with the visa applicant and review applicant whilst they were in Vietnam together. 

29. Whilst the Tribunal accepts the review applicant visited Vietnam on multiple occasions between 2015 and 2020, the Tribunal does not accept that the fact the review applicant was registered as staying at the visa applicant’s address is conclusive evidence that the parties were living together in a partner relationship as they have claimed.  The Tribunal notes the extremely limited evidence before it as to the parties’ claimed living arrangements in Vietnam.  The Tribunal finds that it is not satisfied that the review applicant and visa applicant established joint living arrangements as claimed.   

30. The Tribunal asked the applicants about the sharing of housework in their previous claimed households in Vietnam.  The review applicant stated he did the cooking whilst the visa applicant undertook other activities.   The Tribunal notes again that the parties have not seen each other in over 4 years and claim to have spent relatively limited periods of time together in Vietnam.  The Tribunal finds that there is little evidence of any sharing of housework, but places little weight on this matter given the relatively limited time the parties claim to have lived together. 

31. The Tribunal has considered the nature of the review applicant and visa applicant’s claimed household.  On the basis of the above evidence, at the time of application and the time of decision, the Tribunal finds that it is not satisfied that the living arrangements of the review applicant and visa applicant; any joint responsibility for the care and support of children and the sharing of the responsibility for housework are indicative of parties being in a genuine spousal relationship  as the parties have claimed.  The Tribunal does however only place limited wight on these matters given the parties have lived in separate countries for the vast  majority of the purported spousal relationship.

    The social aspects of the relationship

32. The Tribunal has considered the social aspects of the relationship between the review applicant and visa applicant, including whether they represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which they plan and undertake joint social activities.

33. The Tribunal has considered whether the review applicant and visa applicant represent themselves to other people as being in a spousal relationship with each other. 

34. The review applicant and visa applicant submitted that their families are aware of their marriage and relationship.  This was supported by the review applicant’s brother in his oral testimony to the Tribunal’s hearing.  The parties provided some photographs of their wedding in support of their assertions.  The Tribunal has also taken into account a number of witness statements that were provided post hearing that support the claims to be in a genuine and ongoing relationship. 

35. The parties have submitted that they are mature individuals who do not usually participate in frequent photography and their relatively limited number of photographs is due to their personalities.  In their post-hearing submission, it is stated “that the absence of explicit social recognition in these photographs does not accurately reflect the depth and genuineness of their partnered relationship”.  They claim their relationship is “rooted in shared experiences, mutual support, and a genuine commitment to each other’s well-being”.  The Tribunal has considered these claims, but considers them to largely be a self-serving attempt to explain what is a lack of corroborative evidence in support of their claim to be in a genuine spousal relationship with each other at the time of application and the time of decision.   

1. The Tribunal accepts that the parties may have a degree of familiarity with each other.  The Tribunal notes the photographs previously provided to the delegate as well as those provided to the Tribunal post hearing of the review applicant and visa applicant with various friends and family at a number of venues in Vietnam and has given them some weight in the visa applicant’s favour.   

2. Notwithstanding this, the Tribunal considers that, even taking into account the limitations imposed on the parties by the lockdowns caused by the COVID-19 pandemic, evidence of any representation by the parties as to being in a spousal relationship together, at both the time of application and the time of decision, is very limited.  The Tribunal considered the oral testimony of the review applicant’s brother as to the relationship to be limited.  There are no other supportive statements from any other family members.  Whilst partners may have a genuine and ongoing relationship without the support of, or significant contact with, their families, the Tribunal considers in the case of this review, it speaks to the genuineness of the visa applicant’s claim to be in an ongoing spousal relationship with the review applicant at the time of application and the time of decision. 

3. The Tribunal notes the oral evidence of the review applicant that he has still not declared the visa applicant as his spouse to government bodies such as Centrelink. The failure of the review applicant to do this after a spousal relationship of almost a decade speaks, in the Tribunal’s opinion, to the genuineness of the claimed relationship.  The Tribunal’s concerns were amplified by the visa applicant’s own testimony, where she claimed the review applicant had in fact declared the relationship to such government bodies.  The Tribunal put the inconsistency to the parties under s359A post-hearing.  The visa applicant in the post-hearing written response stated that she and the review applicant had discussed the matter previously, and she had “assumed” he had in fact declared her, and hence did not ask again.  The Tribunal does not consider this response adequately explains the failure of the review applicant to declare the claimed spousal relationship, if the relationship was genuine.  The Tribunal considers the failure of the review applicant to declare a spousal relationship of such a significant duration speaks to the genuineness of the claim of the parties that they are representing themselves as being in a spousal relationship together. The Tribunal places further negative weight on the fact that the visa applicant and review applicant have provided the Tribunal with inconsistent responses, with the visa applicant’s explanation for the omission providing no satisfactory explanation for the failure.

4. On the evidence before the Tribunal, the Tribunal is not satisfied that the review applicant and visa applicant were representing themselves as being in a spousal relationship either at the time of application or the time of decision.

5. The Tribunal has considered the opinion of the visa applicant and review applicant’s friends and acquaintances about the nature of the relationship. 

6. The Tribunal notes the 18 February 2022 statement of the visa applicant’s brother Mr Hoang Van Huy who claims to have known the review applicant since January 2015 when his sister told him she would marry the review applicant.  He states that the visa applicant introduced the review applicant to their family and on 17 January 2016 they married in Hai Duong which he and the family attended.  He states that the review applicant’s family could not arrange to go to Hai Duong for the wedding.  He claims to have gotten to know the review applicant better, and the relationship between the visa applicant and the review applicant has flourished.  Correspondence was also submitted dated 17 February 2022 from Le Quang Manh and Nguyen Thi Toan.  Le Quang Manh claims to be a former colleague of the visa applicant’s father, and claims to be aware of the genuineness of the purported relationship.  He states that the review applicant and visa applicant visited his home for a meal in 2018. 

7. The Tribunal has also noted the correspondence dated 18 February 2022 from a friend of the visa applicant Tran Thi Yen who claims to have been acquainted with the visa applicant since childhood.  She claims she met the review applicant in 2018 when he visited Vietnam, though she had been informed about the relationship by the visa applicant previously.   She stated that whilst she first found the review applicant very cold and he appeared difficult to approach, she witnessed their relationship and thought “they looked like a real family”.  She stated that the wedding was small and she was unable to attend. 

8. The Tribunal has also noted the photographs submitted by the parties of themselves with friends and acquaintances in Vietnam.

9. The Tribunal has considered the evidence before it from the parties’ friends and acquaintances.  The Tribunal considers the evidence is limited and provides little insight into the claimed relationship. The Tribunal notes that two of the friends claim the wedding of the review applicant and visa applicant was small – yet the review applicant in his own testimony stated that 100 people attended the wedding. The discrepancy causes the Tribunal to have some concerns as to the veracity of the claims before it in relation to the genuineness of the relationship.   

10. Whilst the review applicant may well have met the friends and acquaintances that have provided statements, the Tribunal does not consider the statements and opinions of the visa applicant and review applicant’s friends and acquaintances provide a reliable and accurate insight into whether the parties are in a spousal relationship, particularly at the time of decision.  The Tribunal notes that when it questioned the review applicant to name two close friends of the visa applicant, he struggled to do so and named his mother and sister. 

11. The Tribunal notes furthermore that the statements are from 2022, and there is nothing before the Tribunal to corroborate the claims of the parties at the time of decision other than the oral testimony of the review applicant’s brother.  The parties claim to have been in a partner relationship for almost a decade.  Given all the evidence before it, the Tribunal finds it is not satisfied, based on the opinion of the visa applicant and review applicant’s friends and acquaintances, that the visa applicant and review applicant were in a genuine spousal relationship either at the time of application or the time of decision. 

12. The Tribunal has considered any basis on which the review applicant and visa applicant plan and undertake joint social activities.  The Tribunal notes that the parties have not seen each other for 4 years, so obviously takes this into account in its consideration. There is little evidence nevertheless before the Tribunal on this issue, though the Tribunal notes the parties previously both travelled to Thailand.  The Tribunal notes the photographs submitted, and the various evidence from the parties as well as written submissions that speak to activities the visa applicant and review applicant undertook together whilst both were in Vietnam, that include eating out and visiting various attractions.  The Tribunal accepts the parties are familiar with each other and have visited various attractions together in Vietnam. 

13. The principal social activity the parties would appear to have undertaken is their wedding in Vietnam.  The Tribunal has considered the evidence pertaining to this event, and holds concerns as to the claims made pertaining to the wedding. 

14. Under the relevant provision the Tribunal wrote to the review applicant post-hearing and noted his testimony as well as that of his brother who stated around 100 people attended the wedding celebrations. The visa applicant in contrast was vague and evasive in her oral testimony before stating ‘over 20’ people attended and she could not recall how many tables were at the event. The Tribunal notes that the visa applicant’s acquaintances in their written statements submitted to the Tribunal also stated the event to be ‘small’. 

15. The Tribunal has taken into account the photographs of the event and the evidence of the review applicant’s brother who supported the review applicant’s submissions.  In a post-hearing submission the review applicant’s representative concedes the contradictions concerning the wedding ceremony but asks the Tribunal to “consider the totality of evidence provided demonstrating themselves as being a married spouse couple, and socialise as a couple that is in a genuine spousal relationship.”  The Tribunal has considered the totality of the evidence before it in making its findings.  The Tribunal nevertheless has grave concerns, as it submitted at the hearing, given the inability of the review applicant and visa applicant to provide a consistent response on an issue as straight-forward as the number of attendees, and number of tables, at their wedding reception.  The visa applicant in the response to the Tribunal’s s359A invitation now claimed there were approximately 50 people attending at different times, and because the wedding took place on a whole day she was unable to remember the exact number of guests. The Tribunal is not satisfied with this explanation.  The Tribunal notes that a vast discrepancy in the number of attendees still exists between the version of events presented by the review applicant and the visa applicant, even if it were to accept the visa applicant’s evidence.  The Tribunal considers the visa applicant’s s359A response has been crafted in an attempt to justify a glaring and concerning contradiction in an answer to what the Tribunal considers is a relatively straight-forward question.  The Tribunal does not accept the response. 

16. The Tribunal finds that, whilst the visa applicant and review applicant have undertaken some activities together, they have not planned and undertaken joint social activities as a couple in a genuine spousal relationship at the time of application and the time of decision.       

17. The Tribunal has concerns with the applicant’s evidence pertaining to the social aspects of the claimed relationship, particularly given the claim they have been in a continual relationship together for almost a decade.  There is very little evidence of any social aspects of the relationship.  Whilst the parties may be acquainted, the Tribunal does not accept that the social aspects of their claimed relationship are indicative of a genuine and continuing spousal relationship either at the time of application or the time of decision. The Tribunal notes the social recognition from the review applicant’s brother, but considers the social recognition given the duration of the relationship is very limited. The glaring contradiction in evidence concerning their marriage ceremony has caused the Tribunal to doubt the credibility of much of the evidence before it from the visa applicant and the review applicant.  The Tribunal’s concerns have not been allayed by the response to the s359A invitation.   On the basis of the above evidence, the Tribunal finds that the social aspects of the relationship are not, either at the time of application or at the time of decision, those of a genuine and continuing spousal relationship. 

    Nature of persons’ commitment to each other           

18. The Tribunal has considered the duration of the relationship; the length of time the applicant and sponsor have lived together; the degree of companionship and emotional support they draw from each other; and whether they see the relationship as long term.

19. The Tribunal has considered the duration of the relationship.  The parties claim to have been in a spousal relationship with each other to the exclusion of all others for almost 10 years at the time of decision. The Tribunal notes that the parties have not physically met each other for over 4 years at the time of decision.  They claim to have spent multiple periods together in Vietnam up until 2020.  The Tribunal has considered all the evidence before it pertaining to the claimed duration of the relationship and considers it is suggestive of the parties not being in a genuine spousal relationship as they have claimed. 

20. The review applicant claimed at the Tribunal’s hearing that he met the visa applicant in Hai Duong at the end of 2014 in a coffee shop.  The visa applicant however claimed in her own testimony that she first met the review applicant in Hanoi, before changing her testimony to state she first met him in Saigon (Ho Chi Minh City).  The Tribunal subsequently put this discrepancy to the review applicant under s359A, noting furthermore that in the visa applicant’s application form and sponsorship forms, at the time of application, both parties claimed to have met in Saigon (Ho Chi Minh City).

21. In the response to the s359A invitation, the Tribunal notes that the visa applicant has now claimed to have met the review applicant in Saigon (Ho Chi Minh City).

22. The Tribunal is not satisfied that the obvious discrepancy in the claims of the review applicant and visa applicant has been adequately explained.  The review applicant at the hearing claimed in his application that he met the visa applicant in Saigon before stating at the Tribunal’s hearing they met in Hai Duong.  The visa applicant in her application claimed she met the review applicant in Saigon, before stating in evidence at the Tribunal’s hearing the parties met in Hanoi.  She subsequently changed her evidence to again claim the parties met in Saigon.  The visa applicant has claimed post-hearing that she was stressed and exhausted at the hearing, intimating it has impacted upon her testimony on this and on a wider basis.  The Tribunal does not consider this adequately explains the blatantly contradictory evidence that has been provided by both the review applicant and the visa applicant.  There is no medical evidence to support any claim the visa applicant’s ability to provide evidence was impacted by the state of her mental and psychological health. The Tribunal notes Saigon is over 1,700km away from Hai Duong. The Tribunal considers the question as to where the parties met is a straight-forward question that it would expect both parties could easily provide a consistent and coherent response.  The fact that both the review applicant and the visa applicant have changed their responses since the lodgement of the application leads the Tribunal to have concerns as to the broader credibility of their evidence and their claims. The Tribunal is not satisfied in these circumstances that the parties have been in a partner relationship since 2014 and in a genuine spousal relationship since 2016 as they have claimed. 

23. The Tribunal furthermore notes, the oral testimony of the review applicant’s brother, the written statement of the visa applicant’s sister, and the relative lack of evidence of the parties involvement with each other’s families, despite a partner relationship purportedly spanning almost 10 years.  The Tribunal has discussed its concerns with the claims made concerning the marriage itself.  The Tribunal accepts that people in a genuine partner relationship may in certain circumstances have limited to no relationship with each other’s families.  Given the Tribunal’s concerns as to the credibility of the evidence of the visa applicant and the review applicant, the Tribunal considers the relative lack of family connection and recognition between the parties’ families after 10 years speaks to the lack of a genuine commitment of the parties to the relationship.  

24. The Tribunal notes the relatively limited evidence of support for the relationship, or attestations to the relationship being genuine.  The Tribunal has taken into account the oral evidence of the review applicant’s brother as well as the written statements from 2022 of the visa applicant’s sister and some acquaintances of the visa applicant.  The Tribunal considers these statements to be vague and tenuous, offering little actual insight into the purported relationship.  The Tribunal quite simply based upon all the evidence before it is not satisfied that the review applicant and visa applicant have been in a partner relationship for almost a decade, and a ongoing spousal relationship since 2016.  

25. The Tribunal has similarly considered the length of time the parties claim to have lived together.  The Tribunal has taken into account this is an offshore application, and the COVID-19 pandemic and border closures would have precluded the parties from uniting for a considerable period of time.  Nevertheless the Tribunal considers the length of time the parties have lived together is limited. 

26. The Tribunal notes the claims that the review applicant resided with the visa applicant at her residence in Hai Duong as well as his own mother’s residence in Saigon.  The Tribunal accepts that the review applicant was registered as residing with the visa applicant on multiple occasions. The Tribunal notes the evidence from the time of application that between April and June 2016, and July and September 2016, the visa applicant and review applicant were registered at the visa applicant’s Hai Duong City address.  The parties also, as previously noted in this decision record, provided to the Tribunal post-hearing registrations for a one week period in January 2017, a period in February 2016, the period January to April 2015, and December 2015 to March 2016.  The review applicant stated that he and the visa applicant had also stayed at his mother’s house in Saigon.     The Tribunal again notes the parties have provided post-hearing some uncaptioned photographs of themselves together in Vietnam and a small number of statutory declarations from individuals that purport to have spent time with the visa applicant and review applicant whilst they were in Vietnam together.   

27. The Tribunal accepts the review applicant visited Vietnam on multiple occasions between 2015 and 2020.  The Tribunal does not however accept the claim that the registration of the review applicant as residing with the visa applicant is conclusive evidence that the parties were in fact living together.  The Tribunal has concerns as to the veracity of the evidence of the parties based upon the contradictory evidence submitted on matters such as where and when the parties first met.  The Tribunal accepts that the review applicant has registered himself as living with the visa applicant whilst visiting Vietnam.  The Tribunal is not however satisfied that the review applicant in fact resided with the visa applicant for the periods as claimed. The Tribunal notes that the review applicant post hearing provided evidence of some bookings made for him to travel to Vietnam – ostensibly to see the visa applicant – on 20 March 2024. The booking appears to have been made on 13 February 2024, less than a week after the Tribunal’s hearing where the Tribunal questioned the review applicant on the lack of any physical meeting between the parties for over 4 years.  The Tribunal is of the opinion the flight bookings have been made for the purposes of this review rather than the purported ongoing spousal relationship between the parties.  The Tribunal gives the bookings no positive weight as evidence that the parties intend to either reunite or reside together as parties in a genuine and ongoing spousal relationship. 

28. Whilst the Tribunal is satisfied the parties are familiar with each other, the Tribunal is not satisfied that the parties cohabitated as they have claimed in Vietnam prior to March 2020.  The parties on the evidence have not cohabitated since this time.  The Tribunal finds it is not satisfied that the review applicant and the visa applicant have resided together as they have claimed either at the time of application or the time of decision.

1. The Tribunal has considered the degree of companionship and emotional support that the review applicant and visa applicant draw from each other; and whether they see the relationship as long term.  The visa applicant in her post-hearing correspondence stated she and the review applicant have “become very attached to one another and have learnt to understand that not everyone around us will understand our relationship and have continued to stand by one another and not give up.  We both have a very close bond and will continue to stand against all the obstacles.”    The Tribunal asked the review applicant as to the companionship and emotional support he and the visa applicant draw from each other; he responded he couldn’t talk about it other than to say he and the visa applicant loved each other very much.

2. The parties have provided various photographs of themselves together in Vietnam as well as untranslated screenshots of chat records that the Tribunal presumes are communications between the review applicant and the visa applicant.  The Tribunal accepts the review applicant and visa applicant are known to and familiar with each other.  The Tribunal does not however accept that this evidence, particularly given its wider credibility concerns, is demonstrative of genuine companionship and emotional support being provided by the parties to one another. The Tribunal furthermore does not consider this evidence as indicative of the parties viewing the relationship as long-term.

3. The Tribunal noted a number of inconsistencies on what it would consider to be somewhat straightforward questions that were put to the review applicant and the visa applicant at its hearing which are relevant to its consideration of matters such as the degree of companionship and emotional support that the applicant and sponsor draw from each other, and whether they see the relationship as long term.  Post-hearing the Tribunal put these inconsistencies to the review applicant under the usual provisions, who responded in writing both in a submission and through the inclusion of a statement from the visa applicant. 

4. The Tribunal noted in the review applicant’s testimony he stated he worked as a concreter between 2000 and 2006, and then between 2010 and 2015.  He told the Tribunal he stopped working as he had lower back issues.  He stated he had subsequently worked in a variety of roles such as in a cake factory and a pet food factory since 2015.  The visa applicant however stated she could not remember when the review applicant stopped working as a concreter or why he stopped working as a concreter.  She stated the review applicant now worked in a place selling food. The Tribunal considers the significant and fundamental inconsistencies about something as fundamental as the review applicant’s employment speaks to the genuineness of the claims to be in a genuine spousal relationship. The Tribunal considers the visa applicant would know, even taking into account the fact she is offshore, such basic matters pertaining to the review applicant’s past and present employment if they were in a genuine and ongoing spousal relationship.  Post hearing in the s359A response the visa applicant referred to her nervousness at the Tribunal’s hearing and stated she wished to “reconfirm” the review applicant worked as a concreter between 2000 and 2006, and then between 2010 and 2015 before working in a cake factory and a pet food factory.  The Tribunal does not consider that the visa applicant is “reconfirming” her evidence at hearing, the Tribunal considers the visa applicant has simply now adopted the review applicant’s explanation and her evidence at the hearing was inconsistent.  The Tribunal is not satisfied with the explanation for the discrepancy and considers it speaks to the degree of companionship and emotional support that the review applicant and visa applicant draw from each other.  The Tribunal considers the evidence indicates the parties are neither providing companionship and emotional support to each other, nor do they see the relationship as long-term.  The Tribunal considers the inconsistencies are also relevant to the question of the credibility of their evidence to the Tribunal. 

5. At the Tribunal’s hearing the review applicant stated he had not declared his spousal relationship to the visa applicant to government bodies such as Centrelink.  In the visa applicant’s testimony she stated the review applicant had in fact done so.  The inconsistency was put post hearing under s359A.  In response the visa applicant stated she and the review applicant had previously discussed doing this, and having assumed the review applicant had done so, she did not enquire again.  The Tribunal does not accept the explanation for the inconsistency.  The Tribunal furthermore notes that the parties have now been married for a very significant period of time.  The Tribunal considers the fact the review applicant is still, on his evidence, to inform government authorities about his spousal relationship speaks directly to the issue of the degree of companionship and emotional support that the review applicant and visa applicant draw from each other; and whether they see the relationship as long term.  The Tribunal considers it suggests the parties are not. 

6. The Tribunal similarly noted the oral testimony of the review applicant who stated the visa applicant had had no health issues over the last 5 years.  The visa applicant in her own testimony discussed a surgical operation she had had on her thyroid gland during this period.   The matter was put to the parties post hearing under the usual provision.  In response the visa applicant stated that due to modern medicine the surgery was simple and she progressed quickly.  She stated that she “did not share much” about her surgery with the review applicant as she did not want him to worry. The Tribunal is not satisfied with the explanation.  The Tribunal considers the question was straightforward.  The fact that the visa applicant essentially did not inform the review applicant about the surgery speaks again to the Tribunal’s concerns as to the genuineness of the claimed relationship.  The Tribunal considers surgery would be a matter two partners in a long-term spousal relationship supporting each other would share, even if they were in different countries.  The Tribunal considers this issue is relevant to both the degree of companionship and emotional support that the review applicant and visa applicant draw from each other; and whether they see the relationship as long term.      

7. The Tribunal also again notes that the review applicant stated at the Tribunal’s hearing he first met the visa applicant in February 2014.  The Tribunal noted in his sponsorship forms, as well as the visa application form, he stated he had met the visa applicant at the end of 2014.  The applicants’ representative in her post-hearing submission states that despite conflicting evidence, the parties are in a genuine relationship.  The Tribunal has carefully considered the evidence and the post-hearing submissions.  The Tribunal accepts that an inconsistency or contradiction in itself does not necessarily mean a relationship is contrived.  The Tribunal’s concerns however in this review are much broader.  The Tribunal notes significant contradictions and inconsistencies on a range of matters that it considers speaks to the genuineness of the parties’ claims.  These various inconsistencies on matters as straightforward as which city the parties first met in and when, as well as the number of people that attended their wedding, have led the Tribunal to have grave doubts as to the credibility of the evidence of the visa applicant and the review applicant.  These concerns are further exacerbated by what the Tribunal considers is a lack of supportive corroborative evidence pertaining to the parties’ claimed relationship

8. The Tribunal accepts the visa applicant and review applicant are familiar with each other.  On the evidence before it however, and given the Tribunal’s concerns as to the credibility of the evidence before it, the Tribunal finds that it is not satisfied that the visa applicant and review applicant are drawing companionship and emotional support from each other.  The Tribunal is not satisfied the parties see the relationship as long term.     

9. The Tribunal has considered the nature of the visa applicant and review applicant’s commitment to each other at the time of application and the time of decision.  On the basis of the above evidence, the Tribunal finds it is not satisfied that the duration of the relationship; the length of time during which the visa applicant and review applicant have lived together; and the degree of companionship and emotional support the parties draw from each other, are as the parties have claimed.  The Tribunal finds that the review applicant and visa applicant do not see the relationship as a long-term one.  The Tribunal ultimately is not satisfied the purported spousal relationship is not contrived for migration purposes.  The Tribunal is not satisfied that the evidence before it pertaining to the nature of the visa applicant and review’s applicant’s commitment to each other is indicative of a genuine, ongoing spousal relationship at both the time of application and at the time of decision. 

10. On the basis of the above, the Tribunal is not satisfied that the requirements of s 5F(2) are met at the time the visa application was made and at the time of this decision. The Tribunal is not satisfied that at the time of application, and at the time of this decision, the visa applicant and review applicant have a mutual commitment to a shared life as a married couple to the exclusion of all others (s 5F(2)(b)); that the relationship between them is genuine and continuing (s 5F(c)); and they live together or do not live separately and apart on a permanent basis (s 5F(d)). 

11. On the basis of the above the Tribunal is not satisfied that the requirements of s 5F(2) are met at the time the visa application was made and at the time of this decision.

12. There is no evidence or claim that the visa applicant meets any of the alternative criterion for the grant of the visa such as the death, family violence or child exceptions.

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

    Secondary visa applicant

14. The secondary visa applicant is the son of the visa applicant.  The secondary visa applicant’s visa was refused by the delegate on the basis that the visa applicant’s visa had been refused. 

15. As the Tribunal has affirmed the delegate’s decision and found that the applicant does not meet the relevant criteria for the grant of the visa, the Tribunal affirms the decision to refuse the application of the secondary visa applicant.

16. The secondary visa applicant does not meet cl 309.321 as he is not a dependent, or a member of the family unit of a person, who satisfies the primary criteria for the grant of the visa.  

17. For the reasons above, the visa applicants do not satisfy the criteria for the grant of the visas.

    DECISION

18. The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.

    Justin Owen
    Deputy President

    
    

    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).