Diep (Migration)

[2020] AATA 4883

Diep (Migration) [2020] AATA 4883 (4 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr The Cuong Diep

VISA APPLICANTS:  Mrs Thi Hoai Thuong Vu
Master Vu Le

CASE NUMBER:  1830578

DIBP REFERENCE(S):  BCC2017/4046303

MEMBER:Joseph Francis

DATE:4 November 2020

PLACE OF DECISION:  Perth

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

Statement made on 04 November 2020 at 4:13pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – financial aspects – nature of household – social aspects – nature of commitment – amount of time they have spent in each other’s company – evidence of relationship development – sponsor conceived a child with former wife in Australia shortly after marriage to the visa applicant – decision under review affirmed

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

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 24 September 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, Mrs Thi Hoai Thuong Vu, (the visa applicant) applied for the visa on 1 November 2017 on the basis of their relationship with their sponsor, Mr The Cuong Diep, (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(2) because there was insufficient evidence and information provide din support of the application to satisfy the matters prescribed in regulation 1.15A.

4. The review applicant appeared before the Tribunal on 10 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant via telephone from Vietnam. The Tribunal was assisted by an interpreter fluent in English and Vietnamese languages.

5. The review applicant was represented in relation to the review by his registered migration agent, Mr John Galloway. The representative attended the Tribunal hearing.

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 parties are in a genuine married relationship in accordance with section 309.211(2) of the Migration Act, with consideration for regulations R1.15A.

   Whether the parties are in a spouse or de facto relationship

8. 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.

9. ‘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 r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP[2017] FCAFC 206.

   Are the parties validly married?

10. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties were married in a ceremony in Vietnam on 4 October 2017 and the tribunal accepts the validity of the marriage. A copy of the marriage certificate was submitted.

    Are the other requirements for a spouse relationship met?

11. The Tribunal considered each of the matters in Regulation 1.15A, as well as any other circumstances of the relationship.

12. In order to fully appreciate the aspects of the relationship as outlined below, it is worth noting the history of the relationship including the amount of time the parties have known each other, the development of the relationship prior to them being married; and the amount of time they have spent in each other’s company.

13. The parties claim to have first met ‘across a table’ at a wedding in Vietnam in 2007.  The sponsor, having recently married in Vietnam in 2007, attended the wedding of a friend of his then new wife.  It was at this wedding reception the parties claimed to have first met.  It is claimed by the sponsor that they spoke for a brief time at this event.  The sponsor then returned to Australia with his new wife (sponsoring her to Australia) and starting a family; having two children together.

14. The visa applicant, after 2007, also married in Vietnam and has two children from that relationship whom are secondary applicants.

15. The sponsor, as does the visa applicant, claims both of their marriages broke down some time in 2015, and they recommenced contact with each other on social media.  The parties claim they started a romantic relationship in May 2017.  The sponsor travelled to Vietnam in 18 September 2017 and the parties were then married at a ceremony on 1 October 2017, with the marriage certificate being signed on 4 October 2017.

16. The Tribunal notes none of the sponsor’s family attended the marriage ceremony.

17. The sponsor returned to Australia on 9 October 2017, having spent a total of 21 days in Vietnam.

18. The sponsor did not return to Vietnam again until 30 December 2019, and returned departed Vietnam on 6 January 2020, providing the opportunity to spend seven more days with his wife. In total, since the marriage ceremony on 1 October 2017, the parties have spent a possible maximum combined total of 15 days with each other.

19. During the hearing, the visa sponsor provided evidence that after his divorce from his first wife and until the time he travelled to Vietnam in 2017, he continued to live with his first wife.

20. The Tribunal also heard that after his marriage to the visa applicant in October 2017 and subsequent return to Australia in October 2017, the visa sponsor conceived a child with his first wife.

21. The parties gave evidence that they were both aware of the event.  The sponsor claimed it was an ‘once-off’ incident that led to the conception of the child with the sponsor’s ex-wife.

22. The Tribunal heard the evidence from the sponsor that the visa applicant was unaware that the sponsor continued to reside with his ex-wife after their divorce.

    Financial aspects of the relationship

23. The Tribunal considered the financial aspects of the relationship, including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

24. The parties have some knowledge of each other’s financial situation.  Given that the parties reside in different countries and have not established a household, it is reasonable to expect  limited evidence of sharing of financial resources and pooling of finances.

25. The sponsor provided some evidence of financial transactions indicating transferring funds  that support his claims he offers and provides financial assistance to the visa applicant. The Tribunal places some weight on this evidence.

    Social aspects of the relationship

26. The Tribunal considered the social aspects of the relationship including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

27. With consideration to the parties only having spent 15 possible days with each other since their wedding over three years ago, it is difficult to place any weight on the responsibility for care and support of each other’s children.  The parties have no children of their own together.  The parties have not provided evidence of sharing of housework.

28. The Tribunal notes that as would be reasonably expected of a subclass 309 visa where the parties are seperated, it is difficult to establish evidence of a shared household.

29. The visa sponsor claims to have lived with a friend’s family in Australia since returning from Vietnam in October 2017, and a supporting statement was provided from the sponsor’s friend.  However, given the visa applicant herself was unaware that her new husband was still residing with his former wife after they were divorced, it is difficult to establish the legitimacy of such a claim.  The Tribunal places little weight on the nature of the household and the parties living arrangements in support of the application.

    Social aspects of the relationship

30. The Tribunal considered the social aspects of the relationship, including whether parties 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 the persons plan and undertake joint social activities.

31. The Tribunal notes no member of the sponsor’s family attended the marriage ceremony in Vietnam.

32. Some photographs were provided of the parties together in Vietnam

33. Given the limited time the parties have spent together, there is minimal evidence as to the parties undertaking joint social activities.

34. The Tribunal places little weight on the social activities of the relationship.

    Nature of the person’s commitment to each other

35. The Tribunal considered Nature of persons' commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

36. The Tribunal is concerned limited evidence could be provided supporting the development of the relationship prior to the marriage in October 2017.  The sponsor claims to have been in regular contact with the applicant on social media prior to their marriage. However, the sponsor also claims to have lost his phone and therefore the records of social media communications prior to the marriage.  Likewise, the visa applicant was unable to provide evidence of relationship development with pre-marriage communication records.

37. An extension of time was provided to the applicant to provide such evidence post the hearing.  The sponsor submitted a document from a phone company claiming that as the phone numbers were ‘pre-paid’, the phone records were unable to be recalled.  No submissions were made post the hearing with regard to social media communication records.

38. The Tribunal is no satisfied there is sufficient evidence to demonstrate any development history of the relationship. Therefore, in consideration of the nature of the commitment, The Tribunal places little weight on the genuine intentions of the marriage.

39. Considering the sponsor conceived a child with his former wife in Australia shortly after his marriage to the visa applicant, it is difficult to comprehend the sponsor seeing the relationship as long term.

40. The Tribunal notes that a once-off or short-term affair does not in itself define a relationship as being non-exclusive to all others. However, it is reasonable to expect that a newly-wed who envisages their relationship as long-term would remain exclusively committed to the relationship for some period longer than the sponsor demonstrated.

41. The Tribunal places little weight on the parties seeing the relationship as long term.

    Any other circumstances of the relationship

42. The Tribunal is concerned the sponsor has made little attempt to return to Vietnam to visit the visa applicant, with only one short trip in over three years.  Whilst it is accepted that the sponsor has constraints on finances that what place limiting pressure on return travel, the Tribunal places little weight on any other circumstances of the relationship.

43. On the basis of the above the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time of application or the time of this decision.

44. Therefore, the visa applicant does not meet cl.309.211 or cl.309.221.

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

    DECISION

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

    Joseph Francis
    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).