Dang (Migration)

[2022] AATA 2790

Dang (Migration) [2022] AATA 2790 (25 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Thi Ngoc Uyen Dang

VISA APPLICANTS:  Mr Thanh Xuan Nguyen
Miss Thi Thanh Van Nguyen
Miss Thi Thanh Thao Nguyen

CASE NUMBER:  2015878

DIBP REFERENCE(S):  BCC2020/259530

MEMBER:Peter Emmerton

DATE:25 May 2022

PLACE OF DECISION:  Adelaide

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

Statement made on 25 May 2022 at 2:44pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – financial aspects – nature of the household – social aspects – nature of the commitment – time spent together – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 309.211, 309.221

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 Immigration on 21 October 2020 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 1 February 2020 on the basis of their relationship with their 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 visa on the basis that the visa applicant did not satisfy cl.309.211 because they were not satisfied that the couple were in a genuine spousal relationship.

4. The review applicant was scheduled to appear before the Tribunal, via video, on 24 May 2022 to give evidence and present arguments. The Tribunal was also scheduled to receive oral evidence, via video, from Mr Thanh Xuan Nguyen, the visa applicant. The review applicant appeared as scheduled. The Tribunal was unsuccessful in its attempts to contact the visa applicant so that he could participate in the review. When the Tribunal asked why the visa applicant was not appearing, the review applicant stated that she told him he was not required. The Tribunal had no part in this action.

5. The review applicant was not represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the couple is in a genuine spousal relationship as defined by section 5F of the Act.

8. In determining the applicants’ claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their individual circumstances.

9. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the Department.

   Whether the parties are in a spouse or de facto relationship

10. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

11. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion 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 r.1.15A(3), which is extracted in the attachment to this decision.

    Are the parties validly married?

12. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The delegate accepted a Marriage Certificate as evidence that the couple were legally married. The Certificate is dated 13 December 2019, issued by the Government of Vietnam. The Tribunal also accepts this evidence. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

    Are the other requirements for a spousal relationship met?

13. In forming an opinion whether they are in a spousal relationship, consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects, the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.15A which is attached to this decision.

14. The applicant lodged a valid application for a Class UF Partner (Provisional) and BC Partner (Migrant) visa on 1 February 2020 on the grounds of being in a spousal relationship with an Australian citizen, Ms Thi Ngoc Uyen Dang.

15. The visa applicant is a male Vietnamese national by birth.

16. The sponsor is a female Australian citizen by conferral.

17. The department has declared the DOB of the sponsor and the DOB of the applicant. The Tribunal accepts this as fact and therefore it is agreed that both parties have met personally since turning 18.

18. Both the visa applicant and the sponsor are therefore greater than 18 years of age.

19. It is claimed that the review applicant and visa applicant met following an introduction by a friend on the internet. They communicated online through social media from mid-2018. They had not met in person at this stage and first met in person, in Vietnam in December 2018. They were married in Vietnam on 13 December 2019. Department travel records support the claimed travel arrangements to Vietnam. The travel records indicate that the couple have potentially only been able to be in each-others company for approximately 10.5 weeks in total. The Tribunal notes that the review applicant claimed at the hearing that they had been living together for slightly more than 4 months when she visited Vietnam. The Tribunal also observes that they could only have cohabited for less than 2 weeks post marriage as the review applicant returned to Australia on 24 December 2019. The Tribunal notes and finds the discrepancy concerning.  

20. The Tribunal has considered the scant documentary evidence provided to the Department and the failure to provide the Tribunal with substantial additional evidence. The Tribunal twice communicated with the authorised representative requesting detailed additional information in support of the review application 7 days prior to the hearing. The first request was sent on 31 March 2022 and the second request was sent on 10 May 2022, both via email. In both instances the letter stated the following. 

    ‘In order to assess your case, we must consider all the circumstances of your relationship in accordance with reg 1.09A (de facto relationship) or 1.15A (married relationship) of the Migration Regulations 1994 (Cth).

    Accordingly, and without limiting the information that may be given, you are invited to provide further information and supporting evidence addressing these considerations, from the time the relationship commenced until now.

    We have given examples of the type of information you could provide but some may not apply to your circumstances. Please address the matters listed below, as relevant and applicable, in a statutory declaration or written statement that is accompanied by relevant supporting evidence.

    The financial aspects of your relationship

    • If you and your partner have any joint ownership of real estate or major assets like cars, appliances and shares, please provide rates notices, registration documents, receipts, etc.
    •  If you and your partner have any joint liabilities like loans and insurance, please provide loan, policy documents, etc.
    • If you and your partner have a joint account(s), please describe how you use it, including how much money is put into the account and by whom, and what the money in the account is used for.
    • If you do not have a joint account, please describe your and your partner’s financial arrangements, including who pays for what and from what sources. Please provide bank statements to demonstrate these arrangements.
    • If you and your partner share day-to-day household expenses, such as buying groceries or paying for utility bills, please describe which household expenses are shared and how.
    •  If you and your partner have any other financial arrangements or commitments, please describe what they are.

    The nature of your household and living arrangements

    ·    If you and your partner have children of the relationship, please provide birth certificate(s).

    ·    If you and your partner share responsibility for caring and support of any children or other family members, please describe the nature of the arrangements.

    ·    If you and your partner share the housework, please describe how.

    ·     Please describe your living arrangements, including whether you and your partner live alone together, with family members and/or friends or have other living arrangement. Please provide a tenancy agreement if applicable

    The social aspects of the relationship

    • If you and your partner undertake or plan to undertake social activities, please provide a selection of photos or invitations or social media posts.
    • If you and your partner present as spouses or de facto partners to friends, family and colleagues, please describe how and when.
    •  If you and your partner have declared or been recognised as a couple by friends, social acquittances or government agencies, please describe how and when. Please provide statements, tax return forms, Centrelink notices indicating relationship status.
    • If you and your partner are in a de facto relationship, has it been registered? If so, please provide registration certificate.

    You and your partner’s commitment to each other

    Please provide a statement outlining the following:

    • how, when and where did you first meet?
    • how did the relationship develop?
    • the current status of the relationship?
    • the period you and your partner have lived together. If you do not currently live together, have you lived together in the past and how do you maintain contact with each other while you are living apart?
    • how do you and your partner draw companionship and emotional support from each other? Please provide examples.
    • any future plans you and your partner have made for your relationship.

    You may also submit any other information you would like the Tribunal to consider.’

    The Tribunal did not receive responses to its requests for information. It subsequently received on 18 May 2022, a request for the hearing scheduled for 24 May 2022, to be postponed 1 month. The representatives request is stated below.

    ‘I have received a message from mrs Dang.
    It appears she has received some form of injury and cannot attend Hearing. She asking for new date in about one month time if possible.
    Can you advise further when convenient for you.’

21. The Tribunal responded in the negative due to the vagueness of the request which brought the request’s genuineness into question. The response below was sent on 18 May 2022.

    ‘On 18 May 2022 we received a request that the hearing be postponed. The Member
    has considered the request carefully but has decided not to postpone the hearing.

    To make a determination on a further hearing postponement request, the
    Member requires comprehensive and detailed information regarding any form of
    injury sustained by the Review Applicant; with a minimum of a doctor’s letter
    outlining the issues.

    The hearing will therefore proceed (via video conference) as set out below. Please
    note that all details about the hearing, as set out in the hearing invitation letter dated 9 May 2022 still apply.’

22. No further communication was received from the representative other than to state that he would not be representing the applicants at the hearing and could help no further, as the review applicant was not communicating with him.

23. The Tribunal notes that in-spite of the representative’s best attempts the applicants appear to have failed to communicate with him in a meaningful way leading up to the hearing. He respectfully informed the Tribunal on 23 May 2022 that he would not be appearing at the hearing. The Tribunal has appreciated the professional and respectful demeanour of the representative throughout this process.

24. The hearing took place as scheduled with the review applicant. It is noted that she did not respond to the Tribunal’s attempts to communicate with her prior to the hearing to ensure any potential technical issues were remedied. When questioned by the Tribunal, the applicant stated that she had been involved in 3 traffic accidents in a car. They occurred in March 2022 (2) and 1 on 8 May. She acknowledged that she was not physically injured but in shock. Evidence was provided post hearing that suggests the need for a tow truck for a vehicle. The Tribunal accepts that some form of vehicle accidents had occurred but has no evidence before it regarding the severity. The Tribunal questioned whether or not this had been an attempt to delay the proceedings and gather further evidence. The review applicant replied in the negative. The Tribunal expressed that it appeared there was no valid reason why she couldn’t appear, the last accident being approximately 2 weeks ago and that she was clearly present and by her own admission uninjured. When asked whether she had fabricated the story regarding injury it was claimed to be a miscommunication with the representative. It is also observed that no evidence, as detailed in paragraph 21 of this decision, had been presented prior to the hearing as requested by the Tribunal to justify a delay of proceedings.

25. A request was made at the hearing, by the review applicant, for more time to present evidence to the Tribunal. The Tribunal agreed to evidence being presented by 9 am 25 May. The short timespan was to minimise the risk of inaccurate or false information being produced and recognition that a substantial amount of time had elapsed during which evidence could have been gathered in the normal course.

26. Various claims were made by the applicant including that she had only found out about the hearing shortly before the hearing was scheduled to occur. That she had been unable to communicate effectively with her representative because of an incorrect email address. That she hadn’t checked her email regularly. All of these claims were unconvincing. The Tribunal explained that it was her responsibility to ensure correct communications were available with her representative and the Tribunal. It is also noted that telephone calls were always an option and that clearly that at some point in time prior to the matter coming before the Tribunal she had been able to communicate with her representative.

27. The Tribunal in addition commented that in such an important matter as this, it is reasonable to expect regular checking of emails and regular communications with the representative and if communications with the representative appear to have stalled efforts would normally be made to restore effective communication. Claims that Covid-19 made gathering of evidence challenging and time zone differences made communication difficult are rejected by the Tribunal. It is noted that the time zone difference is 2.5 hours.  

28. Following the hearing the Tribunal received 2 Statutory Declarations made by friends of the review applicant, some evidence of the need to use a tow truck in relation to the claimed car accidents, a series of receipts indicating money transfers from November 2020 until January 2022 totalling AUD $10,650 and a Westpac bank account statement in joint names with a zero opening and closing balance. 

29. The Tribunal has considered all aspects of the relationship.

30. There is insufficient evidence before the Tribunal to satisfy it that the relationship is in the view of the Tribunal both genuine and continuing and the visa applicant and the review applicant have an intention to live together on a permanent basis.

    Financial Aspects of the Relationship

31. In relation to the financial aspects of the relationship between the applicant and the sponsor, the Tribunal has considered joint asset ownership, joint liabilities, pooling of financial resources, legal obligations and the sharing of daily household expenses.

32. Neither the visa applicant nor the sponsor have provided substantial evidence regarding the financial aspects of the relationship. The Tribunal received post hearing a series of receipts indicating money transfers from November 2020 until January 2022 totalling AUD $10,650 and a Westpac bank account statement in joint names with a zero opening and closing balances. The amount of money being sent by the review applicant suggests some financial support of the visa applicant and his family but falls well short of demonstrating the pooling of financial resources by the applicants. The Westpac bank statement for the period December 2019 until June 2020 had a zero balance, thus indicating an account had been opened in joint names but nothing more. The motivation for opening the account is undetermined. The Tribunal accepts that as a direct result of stringent money laundering regulations in Australia, it is difficult to operate a joint account when the parties reside in 2 separate countries.  There is no evidence of joint asset ownership, joint liabilities, nor any joint legal obligations. No evidence of Wills or Superannuation was provided. The Tribunal is unable to be satisfied that the financial aspects of the relationship support the claim of a genuine and continuing relationship between the couple. The Tribunal accepts that living apart in 2 different countries makes the provision of such evidence more challenging however it would expect some more substantial evidence to be provided if the claimed relationship was genuine.

33. The Tribunal places substantial weight, in the negative, on the lack of evidence in support of the financial aspects of the relationship. It therefore finds the financial aspect of the relationship are not met.

    Nature of the Household

34. In relation to the nature of the household aspects of the relationship between the applicant and the sponsor, the Tribunal has considered the following.

35. Any joint responsibility for the care of children. No evidence was provided to demonstrate joint responsibility for the care of young children and the Tribunal notes that the dependent children of the visa applicant who are under consideration in this review are in their late teens. The Tribunal therefore notes that neither party has responsibility for very young children.

36. The living arrangements of the visa applicant and the sponsor were considered. The couple have principally been separated by geography post their marriage for almost all of the time. As previously stated, the travel records indicate that the couple have potentially only been able to be in each-others company for approximately 10.5 weeks in total. The Tribunal notes that the review applicant claimed at the hearing that they had been living together for slightly more than 4 months overall when she had travelled to Vietnam. The Tribunal also observes that they could only have cohabited for less than 2 weeks post marriage as the review applicant returned to Australia on 24 December 2019. The Tribunal notes and finds the discrepancy concerning.  The Tribunal accepts that during much of the last 2 years it would not have been possible for either party to visit each other due to the travel restrictions imposed by the Covid-19 pandemic.

1. The Tribunal acknowledges that the sponsor obtained a Temporary Household Registration at the address of the visa applicant from 11 December 2019 until 22 May 2020. (Ho Chi Minh City, Vietnam). No evidence to substantiate cohabitation for the period of the registration was provided and the department’s travel records indicate that the sponsor visited Vietnam between 22 November 2019 and 24 December 2019 and has not returned. This most recent trip commenced prior to the registration period and the registration period commenced 2 days prior to the marriage taking place.

2. Any sharing of responsibility for housework. The Tribunal notes minimal opportunity has existed to share household responsibilities other than during the 10.5 weeks they potentially may have cohabited in Vietnam. The Tribunal accepts the small number of photographs provided showing aspects of their marriage ceremony however there is no evidence of household tasks being shared. No corroborative evidence was provided to indicate cohabitation in Vietnam.

3. No additional evidence was provided to the Tribunal.

4. The Tribunal places minimal weight on the cumulative evidence presented in relation to the nature of the household. It therefore finds the nature of the household aspects not met.

   Social Aspects

5. In relation to the social aspects of the relationship between the applicant and the sponsor, the Tribunal has considered the following. Whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities.

6. A small number of photographs were provided to the delegate which indicate some level of social recognition by family and friends of the relationship. There were a small number of photographs recording aspects of the wedding ceremony. There were in addition some photographs that could be reasonably interpreted to suggest a level of relationship recognition. No additional relevant evidence was provided other than the 2 Statutory Declarations of the 2 friends of the review applicant. Both documents stated that they believed the relationship was genuine.  However, neither provided anything more substantive that supported their belief other than noting the review applicant appeared happy in relation to the relationship and generic platitudes.

7. The Tribunal places substantial weight upon the lack of evidence provided in support of the social aspects of their relationship. It therefore finds the social aspect of the relationship are not met.

   Nature of the Commitment

8. In relation to the nature of the persons’ commitment to each other, the Tribunal has considered the following. The nature of the commitment to each other, the circumstances of the couple meeting, relationship development, length of time they have lived together, the degree of companionship and emotional support that is drawn from each other and whether the couple see the relationship as a long-term.

9. The delegate was presented with some evidence to demonstrate the marriage in the form of photographs and a Marriage Certificate, both the delegate and the Tribunal have accepted this evidence. This indicates that the marriage has been in existence for 2.5 years. The Tribunal also accepts that the communication between the couple started in mid-2018 as supported by the evidence submitted to the delegate.

10. Again, the Tribunal accepts the evidence of travel by the sponsor to Vietnam. It also accepts that the visa applicant and the sponsor communicated online through social media from mid-2018. They had not met in person, until December 2018 in Vietnam. They were married in Vietnam on 13 December 2019. Department travel records support the claimed travel arrangements to Vietnam. The travel records indicate that the couple have potentially been able to be in each-others company for approximately 10.5 weeks in total. A limited number of photographs show that the couple have spent time in each-others company in the presence of others, presumably friends and family.

11. No evidence has been provided to demonstrate that the couple have in fact cohabited.

12. No evidence has been provided that indicates the degree of companionship and emotional support that is drawn from each other and whether the couple see the relationship as a long-term.

13. The untranslated electronic communications between the couple suggest conversations between the visa applicant and the sponsor have occurred but no evidence of their nature or content. 

14. The Tribunal determines that the level of evidence provided to demonstrate meaningful and regular ongoing communication between the visa applicant fails to strengthen the body of evidence necessary to support the genuineness of this relationship.

15. The Tribunal places minimal weight upon the evidence provided in support of the nature of the commitment to each other. It therefore finds the nature of the commitment aspect of the relationship are not met.

16. The Tribunal has found minimal evidence that the visa applicant and the sponsor have invested significantly in this relationship that would satisfy it, that their intentions are a commitment to a shared life as husband and wife to the exclusion of all others, in a relationship that is genuine and continuing, and that the couple will live together, or not live separately and apart on a permanent basis.

17. The Tribunal, having considered all the circumstances of the relationship, finds that the financial, household, social and commitment aspects of the relationship are not indicative of a couple with a genuine, mutual commitment to a shared life together.

18. 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.

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

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

    Secondary Applicants

21. The secondary applicants are not able to meet the secondary criterion of clause 309.321 by virtue of being a dependant or a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Partner (Provisional) (Class UF) (Subclass 309) visa.

    DECISION

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

    Peter Emmerton
    Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

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

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

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

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

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

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

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

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

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

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

    (ii)      any joint liabilities; and

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

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

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

    (b)the nature of the household, including:

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

    (ii)      the living arrangements of the persons; and

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

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

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

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

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

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

    (i)       the duration of the relationship; and

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

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

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

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