Dang (Migration)

[2024] AATA 900

Dang (Migration) [2024] AATA 900 (12 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Thi Thuy Vi Dang
Miss Uyen Thy Dang

CASE NUMBER:  1836791

HOME AFFAIRS REFERENCE(S):          BCC2018/1394629

MEMBER:Deputy President Justin Owen

DATE:12 April 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Partner (Temporary) (Class UK) visas.

Statement made on 12 April 2024 at 12:05pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship before relationship ceased and claim of family violence – validly married – application made on day of marriage – inconsistent and contradictory evidence of first meeting and progress of relationship – limited evidence of financial, household and social aspects of relationship and nature of commitment – applicant unaware of sponsor’s criminal history until after marriage – medical reports reflect applicant’s claims to practitioners – relationship possibly contrived – study, work and close relationship with mother – member of family unit child – no financial support by sponsor – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5F(2), 65

Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 820.211(2)(a), 820.221, 820.321

CASE

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 to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant (the applicant) is a 37-year-old female Vietnamese national who applied for the visa on 25 March 2018 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The second named applicant is her 8-year-old Vietnamese national child. The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211 because the delegate was not satisfied that a genuine spousal relationship existed between the applicant and her sponsor at the time of application. The delegate found the applicant did not meet the requirements of cl 820.211(2)(a) of the Regulations on 6 December 2018.  The applicant applied to the Tribunal for review of the delegate’s decision on 14 December 2018. 

4. On 11 October 2019, the applicant through her representative wrote to the Tribunal to provide written submissions and evidence, claiming that the claimed relationship with her sponsor had now ceased, and she was the victim of family violence.     

5. The applicant appeared before the Tribunal on 2 February 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Thi Hao Ho who is the applicant’s mother. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Relevantly in this case, at the time of decision, to be granted a Subclass 820 visa, the applicant must continue to be sponsored by her sponsoring partner (except where exceptions apply). Those exceptions include:

   ·The death of the sponsoring partner;

   ·Family violence; and

   ·Certain court orders or responsibilities in relation to children.

8. In the present case, the applicant claims the relationship with her former sponsor has ceased, and she has been the victim of family violence.  There are no claims or evidence that the sponsoring partner is deceased.  The second-named applicant is the child of the applicant from an earlier relationship.  There is no evidence or claim of any court orders or responsibilities in relation to children.

9. The Tribunal notes that the family violence criteria require that ‘the relationship between the applicant and the sponsoring partner has ceased’.  The relevant partner relationship must therefore have existed before it can be determined that the relationship ‘has ceased’.  Accordingly, the Tribunal must first consider whether the requisite partner relationship ever existed between the applicant and sponsor before considering a claim of family violence.

10. The Tribunal explained this to the applicant at the hearing and stated that if the Tribunal determined that the partner relationship never existed, the family violence exception to the relationship continuing would not arise for consideration.

    Whether the parties are in a spouse or de facto relationship

11. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.

12. ‘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 parties’ 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) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

13. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal has had regard to a copy of the parties’ Commonwealth of Australia Certificate of Marriage, which according to the document took place on 25 March 2018 at 8 Buckley Close, Fairfield West NSW. 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?

14. The Tribunal must consider all the circumstances of the relationship (including the matters specified in reg 1.15A) in determining whether the parties are in a “married relationship” as defined by s 5F(2).

    Financial aspects of the relationship

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

16. The evidence of the financial aspects of the relationship is limited. The applicant stated at the hearing that there had been no joint ownership of real estate or any major assets during the claimed relationship. There were no joint liabilities. In relation to any pooling of financial resources, the applicant has submitted that a St George joint bank account was established by her and the sponsor.  The applicant claimed the sponsor’s wages were paid into the joint bank account (he was purportedly an IT contractor).  The applicant provided bank statements between April and October 2018 that demonstrate that there were funds deposited in the account from both parties from time to time, and the account was in regular use.  The applicant stated her own wages were not paid into the joint account but her own account.  The Tribunal acknowledges that there is some evidence in the account of payments being made for a number of utilities. The Tribunal finds that there was some pooling of financial resources by the parties and gives it some weight. 

17. In relation to the sharing of day to day expenses, the Tribunal notes the applicant’s oral testimony that day to day costs were not being paid for out of this joint account but out of her own personal account.  The applicant stated at the hearing that this was due to ‘Vietnamese culture’, though the Tribunal gives the claim little weight.  The Tribunal is not satisfied on the evidence before it that the parties were sharing day-to-day expenses. The Tribunal finds  there was little to no sharing of day-to-day expenses by the applicant and sponsor at the time of application.    

18. The Tribunal enquired into whether the applicant and sponsor owed any legal obligations in respect of each other.  The applicant stated that she and the sponsor never discussed such matters.  In response to questions concerning superannuation and beneficiaries and wills, the applicant stated she left such matters to her older sister.  The Tribunal finds it is not satisfied the parties owed any legal obligations in respect of each other at the time of decision.           

19. The Tribunal finds that the applicant and sponsor had no joint ownership of real estate or any major assets during the claimed relationship, as well as no joint liabilities. The Tribunal finds that the parties did pool some financial resources but also maintained a strong degree of financial independence.  The Tribunal finds it is not satisfied there was any meaningful sharing of day-to-day household expenses by the applicant and sponsor. The Tribunal is not satisfied that the applicant and sponsor owed any legal obligation in respect of the other, as might be expected in a genuine spousal relationship.  

20. The Tribunal has considered the evidence before it pertaining to the financial aspects of the relationship. The Tribunal is not satisfied the parties combined their financial affairs as might have been expected of a couple in a genuine spousal relationship. On the evidence before it, the Tribunal is not satisfied that the parties combined their financial affairs to a degree that is commensurate with that of a couple that were at any stage in a genuine and ongoing spousal relationship at the time of application.   

    Nature of the household

21. 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 during the claimed relationship.

22. In relation to the responsibility for the care and support of children, the applicant stated she remained the primary carer for her child, the second-named applicant.  The Tribunal notes the photographs submitted of the sponsor with her child. The applicant claimed the sponsor would drop her child off or take them to the park, but the Tribunal considers these claims provide little insight into any genuine joint responsibility for the child’s care. The Tribunal does note the applicant’s pronouncement at the hearing that the sponsor essentially couldn’t be expected to pay for her child’s costs.  She stated that she largely had to look after the costs of her own daughter.  The Tribunal considers that the parties collectively financially supporting the applicant’s cohabitating young daughter would be a reasonable expectation were the parties in a genuine and ongoing spousal relationship. There is no evidence that the sponsor made any financial contribution to the care of the second-named applicant.    

23. The applicant in response to the Tribunal’s questions provided little insight into the sponsor’s own children who she stated lived with their mother.  She stated the sponsor didn’t want to often mention them to her as he felt she would be upset.  The applicant subsequently stated she would meet the sponsor’s children at family get togethers but they would never stay with her and their father.  The Tribunal considers this reticence to involve each other in the lives of their respective young children, particularly when considered in the context of the Tribunal’s wider concerns, speaks to the genuineness of the purported spousal relationship.

24. Based on the evidence before it, the Tribunal finds it is not satisfied that there was joint responsibility for the care and support of children, whether it be the applicant’s daughter who resided with the parties, or the sponsor’s own children who resided with their mother.  The Tribunal considers the applicant has taken sole responsibility for the ongoing care of her daughter.     

25. The Tribunal has considered the parties’ living arrangements. The applicant claims that she and the sponsor lived together from their marriage in March 2018 up until August 2019.  She stated at the Tribunal hearing that she and the sponsor lived at her mother’s place, and there was no joint residential tenancy agreement in regard to her residential arrangements.  The Tribunal finds this statement difficult to fathom given the applicant previously submitted a joint residential tenancy agreement, signed by the applicant and sponsor, commencing in February 2019 for one year residing together at 1/31-33 Hughes Street, Cabramatta.  This is in stark opposition to the applicant’s evidence in her statutory declaration where she stated she was living at 42/25-29 Hughes Street, Cabramatta from 25 March 2018 until 6 July 2019.  The Tribunal finds it concerning that the applicant was unable to recall the fact she had signed a joint residential tenancy agreement with the sponsor.  The Tribunal finds no plausible explanation before it as to why the applicant would enter a joint residential tenancy agreement to live from February 2019 at 1/31-33 Hughes Street, Cabramatta when she declared she was already living, and lived for at least a further five months, at 42/25-29 Hughes Street, Cabramatta. The Tribunal considers the significant discrepancy between the purported dates of residence and the inability of the applicant to recall she had in fact entered a joint residential tenancy agreement with the sponsor speaks to the genuineness of the claimed living arrangements of the parties.  The Tribunal is not satisfied that the applicant and sponsor had shared living arrangements as they have claimed at the time of application. 

26. The evidence of the parties’ living arrangements is sparse beyond bank statements and some limited correspondence.  The Tribunal accepts that the applicant and sponsor may have shared a mailing address and acknowledges the evidence. In the circumstances of this case however, in the Tribunal’s firm view it provides little satisfactory corroborative evidence of the parties genuinely cohabitating as the applicant has claimed. 

27. On the basis of the evidence before it, the Tribunal is not satisfied the parties’ past living arrangements are as the applicant has claimed. 

28. In relation to the sharing of housework, the applicant stated that she would cook and the sponsor would wash the dishes.  The Tribunal found the evidence vague but notes there is little evidence for the Tribunal to base a finding on beyond the testimony of the applicant and her previous claims to the delegate.. The Tribunal however, given its broader concerns as to the genuineness of the claimed former spousal relationship, and its lack of satisfaction that the parties actually maintained a household together, gives the claim little weight. 

29. On the evidence before the Tribunal, the Tribunal finds it is not satisfied that the applicant and sponsor shared a household as they have claimed.  The Tribunal is not satisfied the parties had genuine intentions to establish a joint household as partners in a genuine spousal relationship. The Tribunal finds it is not satisfied that the nature of the applicant’s household was at the time of application commensurate with that of a couple in a genuine and ongoing spousal relationship. 

    Social aspects of the relationship

30. The Tribunal has considered the social aspects of the previous claimed spousal relationship between the applicant and sponsor, 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.

31. The Tribunal has significant concerns as to the inception of the purported relationship.  The Tribunal considers the evidence before it on this element of the claimed relationship speaks quite frankly to the credibility of the evidence of the applicant.  The Tribunal put the applicant on notice as to its concerns at the hearing and provided ample opportunity for her to address its concerns.  The Tribunal considers the inception of the relationship – and where and how the parties actually met before entering a whirlwind relationship and marriage – is a matter that would be of some significance and should not be of controversy and conjecture.

32. The Tribunal noted at the hearing that in the statutory declarations by the applicant and the sponsor to the delegate, they claimed they met each other at the Bankstown Club in September 2017 on a Vietnamese music night the applicant was attending with her daughter and mother. 

33. The Tribunal noted the statutory declarations from the applicant’s mother and the sponsor’s sister that were submitted by the applicant outlined alternative scenarios.  The Tribunal noted that the applicant’s mother stated that she did not meet the sponsor at all that evening but rather met him subsequently when he visited her home. The sponsor’s sister claimed she met the applicant around September 2017 and the applicant had invited her to her birthday party.  She declared she subsequently attended the applicant’s birthday party with her brother – the sponsor – and in fact first introduced the sponsor to the applicant at the birthday party.   The Tribunal stated the contradictions in the evidence before the Tribunal were significant and could impact upon its assessment of the applicant’s credibility as a witness.

34. The applicant claimed at the Tribunal hearing the truth was she met the sponsor at the club when she was attending with her mother.  She stated that the sponsor’s mother knew her mother.  She stated that she had in fact invited the sponsor’s sister to her birthday party. 

35. The Tribunal noted that in the application form the applicant had claimed she had met the sponsor in Cabramatta.  The applicant explained that she had in fact met the sponsor in Bankstown at the Sports Club and this had been incorrect.  She said the error was due to the fact that she and the sponsor frequently dated in Cabramatta. 

36. The Tribunal noted that since the refusal of her visa, where the delegate expressed concerns as to the inconsistent information before him as to the commencement of the relationship, the applicant had submitted a Form 1023 ‘Notification of incorrect answers’ (D1, Folios 150-151) where she had attempted to state that information in the Form 888 of the sponsor’s sister Ms Thanh Chau Nguyen was incorrect and she attempted to provide the ‘correct information’.  The Tribunal does not consider the role of a Form 1023 is for an applicant to change unhelpful information unilaterally and retrospectively in 888 forms that have been declared by another signatory after the delegate’s decision.  Nevertheless the Tribunal has taken the claims into account. 

37. The Tribunal noted the form at the hearing and noted that the applicant had essentially amended the sponsor’s sister’s 888 form to state she ‘supported’ her brother at the birthday party rather than introduced her brother to the applicant.  The Tribunal notes the applicant has claimed that the information provided to the delegate was an error in typing and a mistake.  For completeness, the Tribunal does not accept the applicant’s explanation. 

1. The applicant claimed in oral testimony at the Tribunal’s hearing that she did not know the sponsor’s sister before the party.  She stated the sponsor’s sister did not introduce the sponsor to her at the party.  The applicant stated that quite simply, the applicant came to her birthday party and brought his sister, who she met for the first time that evening.

2. The Tribunal notes that the Form 888 completed by the sponsor’s sister states that she met the applicant in September 2017 through a mutual friend.  She states that at that time the applicant invited her to her birthday party, and she and her brother (the sponsor) attended on 9 September 2017.  She writes “I tagged my brother along to her birthday party as I wanted him to get out of the house as he was still down from being divorced last year.  I then introduced my brother (the sponsor) to Vi (the applicant) and I guess my brother’s life has turned around since then.  They started dating not long after and the next thing I knew they were engaged and wanted to marry.” (D1, Folio 52).           

3. The Tribunal noted that the statutory declaration of the sponsor’s sister is in stark contrast to the applicant’s claims as to how the parties met and a relationship commenced, even taking into account the applicant’s attempt to retrospectively amend the sponsor’s sister’s statement.  The applicant stated at the Tribunal’s hearing that she did not know the sponsor’s sister until that evening and she only attended as the guest of the sponsor.  In response to the Tribunal’s queries as to the contradictions in the statutory declaration, she stated she did not know “what happened” with the sponsor’s sister’s declaration. 

4. The Tribunal does not accept the applicant’s explanation for the discrepancy and considers it speaks to the credibility of her evidence.  The Tribunal considers the attempt to obfuscate and even amend another individual’s sworn declaration after the delegate’s decision speaks to the credibility of the applicant as a witness.  The Tribunal considers her explanation an attempt to cover up blatantly contradictory evidence on a substantial and straightforward question – ‘where and how did you and the sponsor meet?’  The Tribunal rejects the explanation and considers it suggests the applicant cannot be regarded as a witness of truth.     

5. The Tribunal does not accept that the question as to how the applicant first met the sponsor has become confused due to an administrative error or a typing error of the sponsor’s sister.  The alternative and inconsistent scenarios that have been put before the Tribunal go much further than a simple administrative error and misunderstanding.  Not only is the question as to where the parties first met inconsistent, but so are the claims as to how the parties met: through the sponsor’s sister attending the party and bringing her brother (as claimed by the sponsor’s sister) or through the sponsor having attended the party to which he brought his sister for support.  The claims as to how and when the applicant met the sponsor’s sister are also inconsistent.  The Tribunal does not accept the claims of the applicant as to how she met the sponsor and how the purported relationship with the sponsor commenced.

6. The Tribunal furthermore does not accept the alternate claims that the applicant’s mother first met the sponsor at home or at the club.  The Tribunal considers the claims, and the attempts to explain the contradiction, have been concocted for the purposes of this visa application.

7. The Tribunal subsequently gives no weight to the 888 forms from the sponsor’s sister and the applicant’s mother which purportedly demonstrated how they considered the relationship between the parties was genuine and continuing. The Tribunal notes in a number of the letters submitted in support of a non-judicial family violence claim, the signatories have made claims concerning how the applicant and sponsor met.  These are clearly simply the recital of the claims of the applicant being reported subsequently.  As evidence of the social aspects of the relationship, and the genuineness of the purported spousal relationship, the Tribunal gives them no weight. 

8. On the basis of the information above, the Tribunal finds the opinion of friends and acquaintances about the nature of the relationship at the time of application does not support the claim the applicant and sponsor were in a genuine spousal relationship.

9. The Tribunal finds it is not satisfied that the applicant and sponsor were representing themselves as being in a relationship at the time of application.  At the Tribunal’s hearing the Tribunal asked the applicant how she and the sponsor represented themselves as being in a spousal relationship together.  She stated they went out a lot to restaurants and family parties, whilst they also engaged in public displays of affection.  The Tribunal considered the response to be vague and superficial.  The Tribunal has already rejected the sponsor’s sister’s Form 888 and notes the lack of evidence from third parties as to the nature of the relationship. The Tribunal has taken into account the photographs the applicant provided the Tribunal but notes most pictures are of the applicant, sponsor and her daughter alone, with a small number with other family members.  The Tribunal has taken into account the photographs submitted of the parties’ wedding where the sponsor’s sister and the applicant’s mother attended, but it appears few, if any, other family and friends attended and the applicant confirmed there was no reception, a decision the Tribunal considers unusual given the importance of marriage in Vietnamese culture.  The Tribunal accepts the applicant and sponsor are known by each other’s families; it does not however accept that the parties were representing themselves on a broader level as being in a spousal relationship. 

10. The Tribunal furthermore finds it is not satisfied that the applicant and sponsor were undertaking joint social activities together as parties in a genuine spousal relationship.  The Tribunal acknowledges the photographs submitted of the parties together in a number of social situations and acknowledges the applicant’s statements at the hearing as to what she and the sponsor would do together socially.  The evidence of the parties undertaking joint social activities is sparse and, given the Tribunal’s wider concerns as to the credibility of the applicant’s evidence, the Tribunal is not satisfied the parties were undertaking joint social activities together as spouses. 

11. The Tribunal has considered the evidence before it concerning the overall social aspects of the claimed spousal relationship. The Tribunal finds it is not satisfied the parties were genuinely representing themselves as being in a spousal relationship and considers the relationship was ultimately concocted for migration purposes. The Tribunal has stated its credibility concerns.  The Tribunal has placed significant weight on the inconsistent and contradictory evidence on a number of matters discussed previously that it considers speaks to the genuineness of the claims to have been in a spousal relationship with the sponsor at the time of application.

12. The Tribunal is not satisfied that the social aspects of the purported former relationship constitute evidence of the applicant and her former sponsor having been in a genuine spousal relationship. 

    Nature of persons’ commitment to each other 

13. The Tribunal has considered the duration of the relationship; the length of time the applicant and her former sponsor lived together; the degree of companionship and emotional support they drew from each other; and whether they saw the relationship as long-term.

14. In relation to the duration of the relationship, the applicant originally claims she met her former sponsor on 9 September 2017 in Cabramatta before subsequently claiming they met at Bankstown Sports Club.  She states the sponsor proposed marriage to her on 1 January 2018.  At the Tribunal’s hearing she stated she took time to consider the request before agreeing a week later.  The parties married on 25 March 2018, after which the applicant claims they commenced cohabitating.  The applicant claims she continued living with the sponsor until around July/August 2019.   

15. The Tribunal is not satisfied that the applicant and her former sponsor were in a genuine partner relationship from September 2017 until July/August 2019 as the applicant has claimed. As the Tribunal has discussed earlier in this decision record, the Tribunal has serious concerns as to the genuineness of the applicant’s claims as to how she and the sponsor met and commenced their relationship. The Tribunal considers the corroborative evidence before the Tribunal as to the duration of the relationship is very weak. As discussed earlier in this decision record, the evidence before the Tribunal that speaks to a genuine partner relationship between the parties is sparse. The Tribunal accepts the sponsor is known to the applicant and there has been contact between the families of both parties, and it has taken into account the oral testimony of the applicant’s mother at the Tribunal’s hearing.  The Tribunal is unable to be certain as to how and in what specific circumstances the parties met, but the Tribunal, as it stated to the applicant at the hearing, holds grave concerns that the purpose of the claimed relationship was for migration purposes on the part of the applicant. On the basis of the evidence before it, the Tribunal is not satisfied the applicant and sponsor were in a genuine relationship between September 2017 and July/August 2019 as has been claimed. The Tribunal considers the relationship was concocted by both parties. The Tribunal finds it does not accept the applicant’s claim as to the duration of the claimed relationship.  

16. The Tribunal similarly finds it is not satisfied the applicant and sponsor lived together between March 2018 and July/August 2019 as has been purported by the applicant. The Tribunal has discussed its concerns when considering the nature of the claimed household of the parties. In the applicant’s evidence in her statutory declaration, she stated she was living at 42/25-29 Hughes Street, Cabramatta with the sponsor from 25 March 2018 until 6 July 2019. In her evidence at the Tribunal’s hearing she stated she lived with the sponsor until August 2019 and stated she had never signed a joint residential tenancy agreement with him.  Despite this claim, the applicant has also provided to the Tribunal a signed joint residential tenancy agreement, signed by both her and the sponsor, commencing in February 2019 for one year residing together at 1/31-33 Hughes Street, Cabramatta.  The Tribunal subsequently does not accept the applicant’s claim that she lived with the sponsor at her mother’s place, and that she had not signed a joint residential tenancy agreement, for the duration of the relationship with the sponsor.  The Tribunal considers this evidence speaks to the credibility of the applicant as a witness.  The Tribunal considers the significant discrepancy between the purported dates of residence and the inability of the applicant to recall she had in fact entered a joint residential tenancy agreement with the sponsor speaks to the genuineness of the claimed living arrangements of the parties.  The Tribunal notes furthermore that the evidence of the parties’ living arrangements at either address is very limited. The lack of corroborative evidence of the parties genuinely cohabitating (the oral testimony of the applicant’s mother notwithstanding) as the applicant has claimed causes the Tribunal further doubts.  The Tribunal finds it does not accept the applicant’s claims that she and the sponsor lived together between March 2018 and July/August 2019 as she has purported.       

17. The Tribunal has considered the degree of companionship and emotional support the applicant and her former sponsor drew from each other. The applicant provided little insight in her evidence as to the companionship and emotional support the parties actually provided each other, both orally and in her written statements to the delegate and the Tribunal. She stated that, both having children, she and the sponsor had a lot in common and the sponsor was very helpful to her.  She stated he had divorced in July 2017 (the Tribunal notes the divorce took effect on 26 August 2017), just prior to their relationship commencing. The Tribunal has taken into account the various evidence the applicant submitted, including the evidence in relation to her claim of non-judicial family violence. The applicant has claimed that she and the sponsor kept in regular contact through electronic means but no evidence as such was submitted.  

18. The Tribunal’s concerns as to the companionship and emotional support the applicant and sponsor provided each other is amplified by the evidence submitted by the applicant of the sponsor’s considerable criminal history. The National Police Certificate the applicant provided the delegate as part of her application states the sponsor was convicted of 20 offences between 2004 and 2015 including most recently common assault (DV) and stalk/intimidate intend fear physical etc harm (domestic).  The applicant told the Tribunal she was unaware of the applicant’s long and chequered history of adverse interactions with the law until after they were married.  If the applicant is correct, and she was totally unaware of the charges and convictions until after the parties were married, then in the Tribunal’s opinion that speaks to the genuineness of the claim the applicant and sponsor were in a genuine spousal relationship, providing each other with companionship and emotional support. The Tribunal considers informing one’s potential spousal partner of their history would have been a reasonable expectation if the relationship were genuine and would be relevant to a couple providing each other with genuine companionship and emotional support. In this situation, the applicant states she only discovered this after the marriage. The Tribunal considers this evidence speaks to the sponsor’s lack of commitment to the applicant, and to the relationship in general. The Tribunal has reviewed the evidence carefully, and the oral testimony of the applicant, and is not satisfied that the applicant and her former sponsor were drawing companionship and emotional support from each other as partners in a spousal relationship.       

19. The Tribunal has considered whether the applicant and her former sponsor saw the relationship as long-term. The Tribunal finds it is not satisfied either party saw the relationship as long-term, and notes its findings pertaining to the credibility of the applicant’s evidence.  The Tribunal considers the evidence to corroborate the existence of a genuine spousal relationship between the parties is sparse.  The very fact the application itself was lodged on the actual day of the marriage (25 March 2018) of the parties – when there was little evidence to support the claims of the purported spousal relationship – causes the Tribunal to question the motives of the applicant and the sponsor in regard to the application. The Tribunal notes the significant inconsistencies in the evidence before it on what it would submit are fundamental questions pertaining to the claimed relationship, such as where and how the applicant and sponsor first met.  Given the claimed rapid inception of the relationship (following on just days after the sponsor’s divorce), the Tribunal considers the recall of such matters should be a straightforward and uncontroversial matter.  The sweeping inconsistencies in the applicant’s evidence on this question as opposed to that of the sponsor’s sister, and the applicant’s attempt to amend the sponsor’s sister’s sworn Form 888 statement following the delegate’s decision, causes the Tribunal to have grave doubts as to the parties seeing the relationship as long-term. The applicant has been unable to assuage the Tribunal of these concerns in her response when the Tribunal raised the matter at its hearing.  The Tribunal furthermore considers the contradictions in the evidence before it as to the actual residence of the parties generates even further concerns.  The applicant’s evidence that she had not signed a joint residential tenancy agreement with the sponsor is contradicted by the very agreement she has provided to the Tribunal.  That agreement, which states the applicant and sponsor were to live at a new address from February 2019, lies at odds with the claim that she resided at another address until the claimed relationship ended in July or August 2019. 

20. Such contradictions on fundamental and straightforward questions concerning elements of the purported relationship, combined with a lack of corroborative evidence (beyond the applicant’s mother) to support the claims of a genuine spousal relationship, lead the Tribunal to the conclusion that neither the applicant nor the sponsor saw the relationship as long-term. The Tribunal considers these matters singularly and cumulatively speak to the applicant and the sponsor as not seeing the relationship as long-term.         

21. The Tribunal acknowledges the applicant’s extensive submissions as to being a victim of non-judicial family violence perpetrated by the sponsor.  The Tribunal has taken into account this evidence submitted for the purposes of determining whether the applicant and sponsor were ever in fact in a genuine partner relationship, and in particular the nature of the applicant and sponsor’s commitment to each other. The Tribunal notes the applicant sought treatment with the medical practitioners after the refusal of her visa application. The Tribunal notes the reports largely reflect the applicant’s claims and testimony to the relevant medical professional. The Tribunal is not satisfied that these reports and correspondence provide satisfactory evidence that the applicant was in fact in a genuine spousal relationship with her sponsor.   

22. The Tribunal has taken this evidence, with the applicant’s other evidence and submissions made to the delegate and the Tribunal, into account as part of its consideration as to whether the parties were in a genuine spousal relationship. The Tribunal is not satisfied the parties were drawing companionship and emotional support from each other. The Tribunal is not satisfied that the applicant’s former sponsor, especially, had any view of the relationship as long-term. The Tribunal is not satisfied the parties were in a genuine spousal relationship with each other for the duration of time the applicant has asserted. 

23. The Tribunal considers the lack of corroborative evidence as to a genuine spousal relationship between the applicant and her former sponsor suggests the parties were in fact never in a genuine partner relationship, and any relationship between the two parties that did exist was specifically for migration purposes. The Tribunal has made findings as to the applicant’s credibility in relation to her evidence submitted to the delegate and the Tribunal. The Tribunal holds considerable concerns that the claimed spousal relationship was contrived for migration purposes on the part of the applicant.  The motivation of the sponsor is something the Tribunal is unable to comment on.         

24. On the evidence before it, the Tribunal is not satisfied that the requirements of s 5F(2) were met at the time of application. The Tribunal is not satisfied that the applicant and her former sponsor had 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 was genuine and continuing (s 5F(c)); and that they lived together or did not live separately and apart on a permanent basis (s 5F(d)). 

25. On the basis of the above, the Tribunal is not satisfied that the requirements of s 5F(2) are met at the time the application was made.

1. Therefore, the applicant does not meet either cl 820.211(2) or cl 820.221.

2. The applicant has submitted in evidence that she is no longer in a relationship with the sponsor at the time of the Tribunal’s decision: cl. 820.221.

3. As the applicant does not meet cl 820.211 (2) and cl 820.221, and the Tribunal is not satisfied that the relevant partner relationship ever existed between the applicant and her former sponsor, the Tribunal is not required to consider the applicant’s claims of non-judicial family violence. There is no evidence or claim she meets any other alternate criteria for the grant of the visa.   

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

   Secondary applicant

5. The secondary visa applicant is the daughter 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. 

6. 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.

7. The secondary visa applicant does not meet cl 820.321 as she 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. 

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

   Conclusion

9. The Tribunal recognises that since coming to Australia on a Student visa in 2008 the applicant has successfully completed a Bachelor of Business, a Diploma of Marketing, a Master of Accounting and has worked diligently in very fulsome and demanding management roles in the tourism and hospitality sectors. In that same time she has also raised her young daughter.  These are impressive achievements. The Tribunal accepts she wishes to remain in Australia with her mother, with whom the Tribunal accepts she has a close relationship. The Tribunal however is compelled to consider all the evidence before it.  In this case quite simply the Tribunal is not satisfied that the applicant was ever in a genuine spousal relationship with her sponsor at the time of application or subsequently.  Given this finding, the Tribunal must affirm the decision under review.  

   DECISION

10. The Tribunal affirms the decisions not to grant the applicants Partner (Temporary) (Class UK) visas.

    Justin Owen
    Deputy President

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)       any joint ownership of real estate or other major assets; and

    (ii)      any joint liabilities; and

    (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)     the basis of any sharing of day to day household expenses; and

    (b)the nature of the household, including:

    (i)       any joint responsibility for the care and support of children; and

    (ii)      the living arrangements of the persons; and

    (iii)     any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)       whether the persons represent themselves to other people as being married to each other; and

    (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)     any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)       the duration of the relationship; and

    (ii)      the length of time during which the persons have lived together; and

    (iii)     the degree of companionship and emotional support that the persons draw from each other; and

    (iv)    whether the persons see the relationship as a long term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).