Dinh (Migration)

[2024] AATA 56

Dinh (Migration) [2024] AATA 56 (5 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Vuong Dinh

VISA APPLICANT:  Mrs Thi Kim Loan Tran

REPRESENTATIVE:  Mr Christopher Levan (MARN: 1277638)

CASE NUMBER:  1907308

DIBP REFERENCE(S):  BCC2018/3778013

MEMBER:Kira Raif

DATE:5 January 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

Statement made on 05 January 2024 at 7:31am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – validly married in home country – age and supporting and caring relationship rather than romantic – limited evidence of companionship and emotional support – limited evidence of finances – shared household during sponsor’s visits to applicant, limited by health and COVID restrictions – inconsistent and unsatisfactory evidence about applicant’s previous marriage, separation and divorce – limited knowledge of each other’s lives and adult children – marriage not notified to authorities in Australia – decision under review affirmed

LEGISLATION

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

Migration Regulations 1994 (Cth), Schedule 2, cls 309.211(2), 309.221

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 on 11 March 2019 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of Vietnam, born in August 1962. She applied for the visa on 15 June 2018 on the basis of her relationship with her sponsor. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.211 and cl. 309.221 because the delegate was not satisfied the visa applicant was the spouse of the sponsor. The sponsor (the review applicant) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 20 December 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and two witnesses nominated by the review applicant, Ms Le and Ms Tran. The review applicant was represented in relation to the review. The representative informed the Tribunal that he was unable to attend the hearing with the applicant. At the commencement of the hearing the Tribunal discussed with the applicant the possibility of adjourning the hearing to another day to enable the attendance of his representative and noting the applicant’s own health concerns. The Tribunal encouraged the applicant to discuss this with his representative, which he did. The applicant informed the Tribunal that he did not wish to delay the review and that he wanted to proceed with the hearing at the scheduled time and in the absence of his representative. After the conclusion of the hearing the applicant (and his representative) were provided with a copy of the hearing record.

4. The issue in the present case is whether the visa applicant is the spouse of the sponsor. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. At the time the application was made , 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).

6. 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

7. ‘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). 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?

8. 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 with her application evidence that her marriage with the sponsor was registered in Vietnam on 8 May 2018. There is nothing to suggest the marriage is not valid. The Tribunal is satisfied on the evidence before it that 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?

9. The review applicant provided the following information about his marriage to the visa applicant. The review applicant refers to his previous de facto relationship between 1970 and 1975 and having three children in Australia from that relationship. He states that he married another person around 2009 and sponsored her for the Australian visa, which was unsuccessful, which resulted in the divorce. The visa applicant and the review applicant state that they were introduced by a friend Ms Tran in 2015 and the sponsor travelled to Vietnam to meet the visa applicant in February 2015. Since that time they had regular contact, became friends and gradually developed deep feelings for each other. The sponsor visited the applicant in 2016 and proposed to her on 1 June 2016, which was accepted. They travelled to visit the sponsor’s family and informed everyone about their wedding. In April 2018 the sponsor travelled to Vietnam and they held the wedding celebrations with family and friends. Their marriage was registered on 15 June 2018.

10. The Tribunal has considered the financial aspects of the relationship. The review applicant’s evidence is that he has sent money to the visa applicant on special occasions, about 3-4 times in total. He states that when they are together in Vietnam, both contributed to their expenses. There is minimal evidence about the couple’s financial affairs before the Tribunal. There is no evidence of joint liabilities or joint ownership of assets. There is very limited evidence to indicate that the couple pooled their resources when living together in Vietnam. There is no evidence to indicate the parties have any legal obligations owed to the other. The review applicant told the Tribunal that he was unaware if the visa applicant has any savings or if she would bring any savings with her, stating that it is not an appropriate topic for discussion. The Tribunal is not satisfied the visa applicant and the sponsor had a meaningful discussion about sharing their resources in the future.

11. In considering the nature of the household, the Tribunal accepts the review applicant’s evidence that he had made multiple trips to Vietnam to visit the visa applicant. He told the Tribunal he travelled in 2016, 2018, 2019 and 2022. The visa applicant provided with the application evidence of the sponsor’s temporary registration as evidence of cohabitation. The parties claim that they had shared the housework and there is some photographic evidence before the Tribunal. The Tribunal is prepared to accept that during the sponsor’s visits to Vietnam the couple lived together and shared the housework.

12. The Tribunal has had regard to the social aspects of the relationship. There is a large number of social photographs before the Tribunal and statements from third parties. The Tribunal received oral evidence of Ms Tran who introduced the couple and spoke about their relationship. Ms Tran told the Tribunal that she introduced the couple and observed them together during a trip to Vietnam, and she also speaks to both of them. Ms Tran has expressed the view that the relationship is a genuine and committed one. Ms Le also gave oral evidence to the Tribunal and spoke about the couple’s relationship. Her comments appear to be based on what she has heard from the parties rather than own observations. Nevertheless the Tribunal accepts that both Ms Tran and Ms Le believe the relationship to be a genuine one.

13. The Tribunal acknowledges that the relationship seems to be recognised by third parties and accepts that the applicant and sponsor planned and undertook joint social activities when together and represented themselves to others as being in a relationship. However, the Tribunal also notes the review applicant’s evidence that he has not notified the public housing authorities (he lives in public housing accommodation) and Centrelink about his marriage, stating that he would do so if his wife migrates to Australia.

14. The delegate was concerned that the visa applicant’s immediate family did not attend the wedding celebrations and that there was no traditional wedding. Both the visa applicant and the sponsor explained that given their advanced age, they did not want to have a large wedding and had small celebrations in the north and the south, with their relatives or friends attending.

15. In considering the nature of persons' commitment to each other, the Tribunal acknowledges the claim that the relationship has been in existence for about seven years. Notably, the couple had spent little time together in the years their relationship has been in existence. The review applicant provided a number of medical certificates and the Tribunal accepts that his health – as well as Covid travel restrictions – may have affected the couple’s ability to spend more time with each other.

16. The review applicant’s evidence to the Tribunal is that the relationship is not a romantic one but one where they support and care for each other. The visa applicant seems aware of the review applicant’s health condition but there is little evidence before the Tribunal to indicate that the couple provide each other with companionship and emotional support. Indeed, despite the evidence of regular and frequent contact between the visa applicant and the sponsor, there were deficiencies in their knowledge about each other which raise serious concerns for the Tribunal. Thus,  

    a.The review applicant did not know the type of work done by the visa applicant’s youngest son. The review applicant also told the Tribunal that he last had any contact with the visa applicant’s children in 2022 when he visited Vietnam and that they have no contact when he is in Australia. Similarly, the review applicant said that the visa applicant has no contact with his two younger children (although he claims to have limited contact with them himself). The review applicant told the Tribunal that his two younger children are not aware of his marriage as they do not get along with him.

    b.The review applicant told the Tribunal that his daughter works in a beauty salon and as a cleaner. The visa applicant said she used to work in a spa, had recently resigned and still works ‘around’ that area like selling spa products. The visa applicant said she did not know if the review applicant’s daughter has a second job.

    In his post-hearing submission to the Tribunal the review applicant explained that his daughter sells beauty products but has closed her beauty salon. He states that she used to run a cleaning business and had others work for her but this was never her second job. This explanation seems inconsistent with the review applicant’s oral evidence.

    c.The visa applicant referred to the sponsor’s daughter Anh and granddaughter Joanne. She could not name Anh’s son William or state anything about him, stating that she only enquiries about Joanne because she is a carer for the review applicant. 

    d.Both the visa applicant and the review applicant stated that the review applicant has limited contact with his younger children. The review applicant explained that his son ‘does not listen’ to him and they do not get along. The visa applicant displayed only a limited understanding of why the review applicant has a poor relationship with his younger children.

    In his post hearing submission the review applicant explained the circumstances of the breakup of his relationship with his former wife and children and states that it is a painful topic for him and he does not wish to discuss it. The review applicant states that he himself has limited information about the children. The Tribunal is prepared to accept that evidence but its concern is not with the visa applicant’s (or even the review applicant’s) lack of knowledge about his children but with the visa applicant’s lack of knowledge about the reasons for the break up of the family relationship.

17. The Tribunal found the parties’ evidence in relation to the visa applicant’s previous marriage unsatisfactory. In oral evidence, the review applicant provided very vague explanation about the visa applicant’s previous relationship and seemed to have only limited knowledge about it and the circumstances of the visa applicant’s divorce. The review applicant told the Tribunal that his wife separated because she and her first husband ‘did not get along’. He was not able to offer a meaningful explanation why they decided they did not get along, after being married for many years and having two children together. The review applicant then suggested there was family violence in that relationship and that the ex-husband had an extra-marital affairs.

18. The review applicant was unable to state when the visa applicant separated from her first partner. When asked to explain the delay between separation and divorce, the Tribunal found the review applicant’s evidence to be extremely vague. He said that the visa applicant tried to save the marriage, although he could not explain how she was planning to do so. He also said that it was their families who insisted on the relationship continuing but the visa applicant refused to maintain the relationship due to family violence, which seems to contradict his evidence that the visa applicant wanted to save the marriage. Similarly, the review applicant initially stated that after separation, the visa applicant and her ex-husband had contact about the children and because they lived nearby. He later changed his evidence and said that there was no contact between them as the ex-husband had an affair and the visa applicant did not wish to have contact with him. However, the visa applicant told the Tribunal that she and her ex-husband maintained contact with each other because of their children.

19. The Tribunal questioned the parties about the reasons for the visa applicant’s first marriage breakdown. The review applicant told the Tribunal the visa applicant experienced family violence and also her ex-husband had an affair. However, the visa applicant told the Tribunal that the reason for the divorce with her first husband was because they had different perspectives on life and there were no other reasons for the divorce. After some probing, the visa applicant said that her husband hit her once and that was the ‘final nail in the coffin’. After further prompting she said that her ex-husband did have an affair but that was not the main reason for the divorce.

20. The Tribunal accepts the review applicant’s post-hearing submission that marriage break ups are complex and usually involve a variety of reasons but the Tribunal would expect the parties to be able to demonstrate and express a deeper knowledge and understanding of the issues involved.

21. When questioned about the reasons for the delay between the visa applicant’s separation and divorce, both the visa applicant and the sponsor stated that the visa applicant’s children were too young. However, the review applicant also told the Tribunal that the visa applicant wanted to save the marriage while the visa applicant told the Tribunal that other than the young age of her children, there were no other reasons for the delay in the divorce. (The application form states that the marriage ended in March 2016 while the visa applicant told the Tribunal that it was in 2014). In his post hearing submission the review applicant notes that the marriage ended in 2014 and that fact is supported by documents. This does not explain the information in the application form.

22. The Tribunal has formed the view that the parties have not been entirely truthful in their evidence concerning the visa applicant’s previous marriage and also that the review applicant did not have adequate knowledge about the visa applicant’s previous marriage.

23. There are also some concerns with the parties’ knowledge about some aspects of each other’s lives, in particular, past employment. Thus,

    a.The visa applicant told the Tribunal that she works for a community medical practice and had stopped working for a pharmaceutical company last year. The review applicant told the Tribunal the visa applicant works for a pharmaceutical company.

    b.The review applicant told the Tribunal that he never worked in Australia due to an injury in 1998 and that he previously relied on the Disability Support Pension before receiving an  Aged Pension. The visa applicant said that the review applicant has had many jobs in Australia and stopped working about three years before they met due to his disability.

    In his post-hearing submission the review applicant explained that he had a brief cash in hand job for a very short period and that he never had a permanent and stable job in Australia. That seems to contradict both his and the visa applicant’s oral evidence about his past employment.

24. The parties claim to have daily contact (and there is documentary evidence of their contact) and in such circumstances, the above discrepancies are of concern as they suggest the depth of their knowledge about each other is not consistent with the claimed duration of the relationship and their claimed mutual commitment to the relationship.

25. The Tribunal acknowledges that much of the parties’ oral evidence was consistent. The Tribunal accepts the review applicant’s evidence that his memory may have been affected by the stroke and has made appropriate allowances for the review applicant’s health condition (noting however that some of the concerns arise from the visa applicant’s evidence rather than the review applicant’s). The Tribunal acknowledges the documentary evidence that was submitted with the application and to the Tribunal (although the Tribunal found that evidence to be limited, given the claimed length of the relationship).

26. Generally, the Tribunal accepts that some aspects of the relationship point to the existence of a genuine spousal relationship between the visa applicant and the sponsor while others have raised concerns which cause the Tribunal to question whether the parties view the relationship as a long term one and whether they are mutually committed to it.

27. Having carefully considered all the evidence before it, the Tribunal is not satisfied that the visa applicant and the review applicant have a mutual commitment to shared life to the exclusion of others. The Tribunal is not satisfied their relationship is genuine and continuing. The Tribunal is not satisfied they live together or not separately and apart on a permanent basis. 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 the time of this decision.

1. As the parties are validly married, the Tribunal is not satisfied, for the purpose of cl. 309.211(3) that they intend to marry. There is no suggestion that any of the other exceptions apply – that is, that the visa applicant has experienced family violence in this relationship or that there are minor children.

2. The Tribunal is not satisfied that the visa applicant meets cl 309.211 and cl 309.221.

   Conclusion

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

   DECISION

4. The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

   Kira Raif
   Senior Member