Do (Migration)
[2020] AATA 127
•6 January 2020
Do (Migration) [2020] AATA 127 (6 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Cao Minh DO
CASE NUMBER: 1716022
DIBP REFERENCE(S): CLF2013/185399
MEMBER:Mireya Hyland
DATE:6 January 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.
Statement made on 06 January 2020 at 7:46pm
CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – genuine spousal relationship – credibility concerns – financial aspects – joint bank account – nature of household – employment history – work schedule – social aspects – photographic evidence – nature of commitment – friends – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cl 801.221CASES
Dranichnikov v MIMA [2003] HCA 26Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration on 10 July 2017 to refuse to grant the applicant, Cao Minh Do, a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).
Mr Do applied for the visa on 6 August 2013 on the basis of his relationship with his sponsor, Kim Huong Bui, and was granted a Partner (Temporary) (Class UK) Subclass 820 visa on 23 December 2014. At that time, Class BS contained one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The visa was refused on the basis that Mr Do does not satisfy cl.801.221(2) because the delegate was not satisfied that Mr Do is the spouse of Ms Bui. Mr Do provided that decision to the Tribunal with his review application.
According to the delegate’s decision and the interview notes on the Department of Home Affairs’ (DOHA) file, Mr Do had a telephone interview with the delegate on 29 March 2017. Mr Do appeared before the Tribunal on 3 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Bui and her father, Cong Tac Bui, as well as Ms Bui’s mother, Thi Hoc Tran, and her sister, Thi Van Bui. The interview and the hearing were conducted with the assistance of an interpreter in the Vietnamese and English languages. Mr Do was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing. Where relevant the evidence given at the interview and hearing is set out below. It is not necessarily set out in the order in which it was given.
The issue in the present case is whether Mr Do’s claim to be the spouse of Ms Bui is credible. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF THE CLAIMS AND EVIDENCE
Mr Do and Ms Bui claim they met on 20 March 2011 and entered into a relationship on 7 September 2011. They were engaged on 15 February 2013 and married on 19 May 2013. They live at [address] in New South Wales with Ms Bui’s parents and sister where they pay $125 for rent and board. Until recently Ms Bui had been doing shift work at Berala Hotel for a number of years including while studying fulltime at Ultimo TAFE until 2017. Mr Do has worked for a dry cleaner in Erskineville since October 2018. He claims that before that he was unemployed and relied entirely on Ms Bui’s income. Mr Do told the Tribunal that starting in early 2016 friends took him to the pub and he would play the poker machines. He was losing a lot of money. Ms Bui started to notice that he often went out with friends and came home late so they had arguments. When they noticed money being withdrawn from the joint bank account Ms Bui confronted Mr Do who confessed to the gambling. Some period after this he succeeded in quitting gambling. From 26 April 2019 to 24 May 2019 Ms Bui travelled to Tokyo and Seoul without Mr Do. The airline ticket alone cost $1,439.61, the Tribunal was not provided with the cost of accommodation. Ms Bui claims that her sister paid for this trip and they could not afford to take Mr Do.
Documents
The following statements were provided by Mr Do:
· Relationship statement dated 26 June 2013 by Mr Do: He first met Ms Bui on 20 March 2011 at the Pioneer Restaurant in Yagoona where he was attending his close friend Huong’s wedding to Ms Bui’s brother. There were many people at the wedding, but he and Ms Bui were only looking at each other. Mr Do stayed until the end of the party and approached Ms Bui and introduced himself. They spoke and he asked for her phone number. The next day he called and spoke to Ms Bui and they began speaking every day. Ms Bui is a kind and gentle person who Mr Do really liked so they started to go out. On 7 September 2011 Mr Do had a birthday party and invited Ms Bui. She helped with the party and he could not hold in his feelings for her anymore so at the end of the party he asked her to be his girlfriend. She said yes. They spent more time together and started understanding each other more. He introduced her to his aunt and he went to her house to meet her parents. His aunt and Ms Bui’s father knew each other because they lived close by in Marrickville. Everyone supported the relationship. Mr Do proposed to Ms Bui on 15 February 2013 at Sydney Tower. They were together for the whole day and he wanted to surprise her. He got down on one knee when he proposed. Ms Bui cried. They spoke to their families about their engagement. They were married on 19 May 2013 at Liberty Plaza Bankstown.
· Relationship statement dated 26 June 2013 by Ms Bui: She first met Mr Do at her sister-in-law’s wedding on 20 March 2011 at the Pioneer Restaurant in Yagoona. He was looking at her and she was looking at him and towards the end of the night he approached her. He asked for her number and she saw he was kind and genuine. He called Ms Bui the next day and they spoke about the wedding and got to know each other a bit. He is quite good friends with Ms Bui’s sister-in-law. They spoke more and spent time together. Then at Mr Do’s birthday party on 7 September 2011, after around five months of knowing each other, Ms Bui came to help with the preparations. At the end of the evening Mr Do asked Ms Bui to be his girlfriend. She agreed and they began to spend more time together and meet each other’s families. Mr Do’s aunt and Ms Bui’s parents have known each other because the Buis used to live in Marrickville. On 15 February 2013, Mr Do and Ms Bui were together and it was a normal day. Mr Do said he wanted to take Ms Bui to Sydney Tower which surprised her. While looking at the view Mr Do knelt down and proposed. Ms Bui accepted. They spoke to their families who were happy. They married on 19 May 2013.
2017
· Statutory declaration dated 19 January 2017 by Mr Do: The relationship began in 2011. They have lived together for over two years since their marriage and have known each other six years. They have one joint bank account with the Commonwealth Bank. They live with Ms Bui’s parents and pay $100 for food and accommodation. Mr Do stays at home and helps with housework as much as he can. Ms Bui works casually at Berala Hotel as a bartender and studies fulltime at Sydney Ultimo TAFE. They are still young and have not thought about children. They will think about it when they are better off financially. Sometimes they go out with friends for dinner or coffee: ‘Our days off are not the same so we are hardly go out much’ [sic]. However, they go out at night or stay home together. They flew to the Gold Coast for Easter 2015. They love each other and take care of each other. When Mr Do is tired or not feeling well Ms Bui looks after him. When Ms Bui is sick or upset about work Mr Do takes good care of her and always is by her side. They have many things in common and think the same way about life.
· Statutory declaration dated 3 February 2017 by Ms Bui: The relationship began in 2011. They have lived together for over two years since their marriage and have known each other six years. They struggle financially because Mr Do does not work and Ms Bui is working casually. They put reasonable amounts in their joint bank account which they both use together. They live with Ms Bui’s parents because they are not financially stable and pay $100 for living expenses like food and electricity and contribute through chores and housework. They have discussed children, but Ms Bui is studying at Ultimo TAFE and working. They are also too young and financially unstable. They would not be able to dedicate the time to a child. They have discussed two children, a boy and a girl. Since Mr Do has the majority of the day free he contributes around the house lending a hand with housework. Ms Bui does not have much time off, but on the days she gets off they go out to dinner or lunch with friends. Mostly they stay at home in each other’s company to save money. They spontaneously went to the Gold Coast for Easter in 2015. They are eager to travel and are saving money to take a trip to Vietnam to visit Mr Do’s parents as a honeymoon since they did not have one. They work well with each other and Ms Bui loves the fact that Mr Do is so understanding and puts up with her since understanding and patience is needed especially when it comes to juggling changing work hours and TAFE. They have bad days when Ms Bui is too tired to do anything and she neglects him. But during these tough times she reassures him that she is still there for him and they come to the conclusion they are building a better future. Mr Do takes care of Ms Bui so well she sometimes thinks he is too good for her. Ms Bui would like to think she cares for Mr Do as well as he does her. She is glad to have met him and as long as they know where they stand with each other she can see the relationship going far into the future.
2018
· Statutory declaration dated 20 August 2018 by Mr Do: His relationship with Ms Bui is genuine. They have been in a relationship for over seven years since first meeting on 20 March 2011. They married on 19 May 2013 over five years ago. They have lived together for over five years and have been sharing their lives financially. Ms Bui works fulltime. Mr Do has been looking for work. Sometimes he works part time. They have made a family plan. Mr Do has good knowledge of his in-laws.
· Statutory declaration dated 20 August 2018 by Ms Bui: Mr Do and Ms Bui use the joint bank account, not as much as they would like, but ‘it’s main purpose is to pay for our necessities such as food, health insurance bill, etc.’ There was a period when Mr Do did not have access to the account due to his gambling habit. They have gradually overcome that issue and he has recently regained access. He now understands they are in no position to throw money around freely. Because of Mr Do’s gambling, Ms Bui felt insecure about revealing her finances so did not give Mr Do details. Over the last year they have realised they have a lot to learn from and teach each other. Through their ups and downs Mr Do has not failed to show his commitment and effort for their relationship. Ms Bui plans to continue to do the same. It can be challenging, but they will give their all. Mr Do knows about Ms Bui’s employment and family members. They have set up a plan. They live in Room 1 in Ms Bui’s parents’ house and pay $150 per week in lodging. They will purchase a property in future. Ms Bui has been working as a bartender/manager for the last three years with take home income of $900 per week. She has been looking after Mr Do who has been looking for work. She believes Mr Do will get a job in the near future and they will work hard, make money, have savings. They plan to have two children, a son first and then a daughter, as soon as possible because they are young. Mr Do and Ms Bui intend to visit Vietnam to see relatives.
· Statutory declaration dated 20 December 2018 by Mr Do: Mr Do has found a job as a dry cleaner. He and his wife are sharing a financial life.
· Statutory declaration dated 18 December 2018 by Ms Bui: Mr Do and Ms Bui are a married couple living together. They have grown stronger together and are very happy. Mr Do has recently found a full-time job at 128A Erskineville Road, Sydney doing dry cleaning six days per week which is good for their finances. He has quit gambling and is focused on creating a stable future.
2019
· Statutory Declaration dated 5 December 2019 by Mr Do: Ms Bui’s sister, Thi Ban Bui, paid for Ms Bui to go overseas to Seoul and Tokyo from 26 April to 25 May 2019 as a gift to thank Ms Bui for her help with preparations for Thi Ban Bui’s wedding. Mr Do did not accompany Ms Bui because he would have had to get a Bridging Visa B and he was working to support his family. At the time Ms Bui had quit her job at Berala Hotel because of a health condition that does not allow her to work the night shift for long periods so she had the free time to travel overseas. He will travel with Ms Bui overseas in the future.
· Statutory declaration dated 5 December 2019 by Ms Bui: Thi Ban Bui paid for Ms Bui to go overseas, although Ms Bui had her own spending money. Mr Do stayed in Australia because he was busy with work and it was too expensive to purchase a ticket or accommodation for him. The trip would have been more amazing is Mr Do had joined Ms Bui, but they were not financially stable enough to do so. They will travel in the future.
Other Statements
· Statutory declaration dated 4 August 2013 by Cong Tac Bui, Ms Bui’s father: Mr Do and Ms Bui live with him and he sees them every day. He sees that they are compatible and Mr Do is a good person. They are very much in love and care for each other. He will support them financially until they are capable of moving out. They told him they are hoping to move out in the next 12 months as Mr Do will finish his business studies next year and is looking for part time work to help Ms Bui financially. Ms Bui works part time as a hairdresser.
· Statutory declaration dated 21 January 2017 by Tac Cong Bui, (aka Cong Tac Bui, Ms Bui’s father): He has known Mr Do through his daughter and a family friend. He found out they were dating shortly after meeting at his son’s (Ms Bui’s brother’s) wedding. A few years later Mr Do asked his permission to marry Ms Bui. Mr Do has been living with them since the marriage just over 3 years ago. They are strong and dependent on each other. They have set goals and continue to strive to achieve them such as completing their study, saving for a honeymoon, moving out, having children. He knows it is hard to study and work and he supports their decision not to rush into children so young. He knows they want to be more financially stable and independent first. The day of the wedding he was blessed and content that his daughter had found someone like Mr Do to care for her and love her so much. He and his wife have grown to love Mr Do like a son. He is quiet and does not like too much attention, but he is most relaxed and himself when he is with Ms Bui. He brings Ms Bui down to earth, grounds her temper and personality. They are starting their life together and that can be hard sometimes, but given the opportunity Mr Do will look after Ms Bui.
· Statutory declaration dated 4 August 2013 by Thi Hoc Tran, Ms Bui’s mother: Her daughter and Mr Do live with them because of their financial situation. Ms Bui told her mother about her relationship with Mr Do early on and they support her in her decision. They discussed the matter with Mr Do’s family and jointly arranged and helped in their wedding. They attended and blessed the wedding. Both Mr Do and Ms Bui are very young and Ms Bui’s parents will help them until they are financially independent. She can see they love and care for each other, their love is genuine, and they told her of their plans to move out, complete their studies, and build a family.
· Statutory declaration dated 21 January 2017 by Thi Van Bui, Ms Bui’s sister: She has known Mr Do for six years since she was introduced to him by Ms Bui as her then boyfriend. Mr Do was infatuated with Ms Bui and they were inseparable. She gained a brother after they married in early 2013. When the family moved to a new home Mr Do moved in with them. She believes Mr Do and Ms Bui are in a steady relationship, are young and in love. They have overcome hurdles and every obstacle together and the commitment they have made to each other shows through by the simplest acts of kindness, forgiveness and care for each other. Mr Do is very much a part of their family and has built a rapport with everyone and they all get along. She sees that the two of them share the same hopes and dreams that they wish to accomplish for each other. When things do not go as planned through the tough times they truly do know how to support each other. They want to move out when they are more financially stable to build a family, work towards their careers in order to provide the best life they can. She sees they are driven to succeed in life and try to make each other happy. She admires their commitment, being so young and finding their soulmate. They go through issues but work things out like mature adults. Mr Do is kind and caring, taking care of Ms Bui to the best of his ability and resources. He has family in Vietnam, but Australia is home now. Thi Ban Bui’s mother and father are especially fond of Mr Do. She hopes one day there will be a child and they will get to stay together. It would be devastating if they are separated since they love each other unconditionally and it will be a terrible loss to the family household.
· Statutory declaration dated 5 December 2019 by Thi Van Bui: Thi Ban Bui paid for Ms Bui to go to Japan and South Korea as a gift for being her maid of honour. Thi Ban Bui and her husband left a week earlier than Ms Bui with a group of friends and they met up in Tokyo. The tickets and accommodation were paid for using PayPal and a credit card.
· Statutory declaration dated 25 January 2019 by Thong Hanh Simon Do, Mr Do’s employer and friend: He is not related to Mr Do although they have the same last name. He is Mr Do’s employer and friend and has known the couple for about two years. He has had regular contact with them. He strongly believes that their relationship is genuine and continuing. They love each other, their marriage is real, they have lived together for six years as husband and wife, they have been sharing their life, and appear as married.
· Statutory declaration dated 25 January 2019 by Huu Dat Do, Mr Do’s best friend: He has been in contact with Mr Do and Ms Bui by phone and visiting, and strongly believes that their relationship has been genuine and continuing. They love each other very much and have been husband and wife for a long time. They have lived together for a long time, share life and appear as husband and wife ‘on any occasion’, and have been building a long term, good and happy family in Australia.
Supporting Documents
Mr Do provided the following documents:
· Marriage certificate registering Mr Do’s and Ms Bui’s marriage on 19 May 2013.
· Ms Bui’s birth certificate registering her birth on 8 March 1994.
· Mr Do’s birth certificate registering his birth on 7 September 1991.
· Proof of Ms Bui’s Australian citizenship.
· Driver’s licence receipt for Mr Do dated 7 May 2018.
· Prescriptions dated 1 April 2016 for Mr Do at [address].
· Receipt from Harvey Norman dated 8 June 2014 for a television.
· Receipt from Forty Winks dated 10 June 2013 for a bed addressed to Mr Do and Ms Bui at [address].
· Receipts from Bing Lee dated 23 February 2014 for a microwave and heater.
· Receipt for four ‘ADELE’ tickets ($830.50) at ANZ Stadium on Friday, 10 March 2017 addressed to Ms Bui.
· Documents relating to a Gold Coast trip in Mr Do and Ms Bui’s names from 5 April 2015.
· Documents related to an overseas trip in Ms Bui’s name from 26 April 2019.
· Various wedding receipts.
· Miscellaneous pieces of mail Mr Do told the Tribunal he had submitted to show his residential address.
· 38 photographs of just Mr Do and Mrs Bui; 2 miscellaneous scrapbook photo pages; 24 wedding photos; 1 photo of Mr Do and Ms Bui with Ms Bui’s older brother and his wife, Mr Do’s friend Huong; 1 photo of Mr Do and Ms Bui with Ms Bui’s sister; 1 photo of Mr Do and Ms Bui with Ms Bui’s parents; 8 photos with family/friends on 4 different occasions; photos of Ms Bui and her sister in Japan.
Financial Documents
Mr Do provided the following financial documentation:
· Commonwealth Bank (CBA) statements for the joint account ending 5992 for 25 February to 4 December 2019, 1 January 2018 to 6 January 2019, 1 February 2017 to 3 August 2017, 1 January 2015 to 24 July 2015, 20 April 2014 to 14 October 2014.
· Letter from CBA dated 14 October 2014 to Mr Do confirming the details for account ending 5992 including that it was opened on 28 May 2013 and that as at COB 13 October 2014 the balance was $626.22.
· Statement for CBA account ending 2998 in Ms Bui’s name from 12 December 2018 to 12 March 2019.
· Letter dated 30 January 2014 addressed to Mr Do from CBA regarding theft/loss of Mr Do’s debit card for account ending 5170 replacing it with account ending 9403.
· Letter dated 31 January 2014 addressed to Mr Do from CBA regarding theft/loss of Mr Do’s debit card for account ending 0005 replacing it with account ending 1770.
· 1 letter dated 29 May 2013 and 2 letters dated 10 February 2014 addressed to Mr Do from CBA containing new debit MasterCards, accounts unknown.
· Undated Breadtop Employee Record for Mr Do identifying the CBA account ending 5992 as his bank details.
· Notice of assignment from Baycorp Collections PDL (Australia) Pty Ltd dated 20 June 2017 to Mr Do informing him that his debt of $1593.32 owing to Optus Pty Ltd had been assigned to them for collection.
· PAYG payment summary for Ms Bui FY2013 and 2014 from Zyka Pty Ltd and first half FY2016 and 2017 from Berala Hotel.
· PAYG payment summary for Ms Bui FY2019 from Berala Hotel.
· 61 payslips June 2016 to December 2017 from Berala Hotel made out to Kim Bui. Superannuation is Australian Super.
· 4 payslips October 2018 to December 2018 from Erskineville Dry Cleaners made out to Cao Minh Do. Superannuation is Australian Super.
· Insurance account from AAMI dated 10 April 2014 addressed to Mr Do for fire and theft contents insurance at [address], occupied as a tenant.
· BUPA membership certificate for couples cover of Mr Do and Ms Bui with cover starting on 15 August 2018 and premiums deducted from the CBA account ending 5992.
Vehicle Documents
Mr Do provided the following documents in relation to his motor vehicles:
· Registration notice dated 2 February 2014 addressed to Mr Do for a 1998 Toyota Camry VRN VMS076.
· Undated letter from GIO addressed to Mr Do regarding the transfer of the CTP to him for the Toyota Camry VRN VMS076.
· Certificate of currency from AAMI dated 13 February 2014 addressed to Mr Do for 3rd party damage coverage (policy no. MPA020098677) for the Toyota Camry VRN VMS076.
· A direct debit decline notice from AAMI dated 2 April 2014 addressed to Mr Do for a missed payment of policy no. MPA020098677 on 13 March 2014.
· 2 letters from AAMI dated 13 August 2014 and 3 October 2014 addressed to Mr Do regarding non-payment of a policy excess.
· Final Toll Notice dated 8 July 2014 for M5 trip, VRN VMS076, on 27 May 2014 addressed to Mr Do at [address].
· 2 final Toll Notices dated 4 October 2014 and 18 November 2014 for Cross City Tunnel trips, VRN VMS076, on 16 July 2014 and 14 September 2014 addressed to Mr Do at [address].
· Parking penalty reminder dated 21 July 2015, VRN VMS076, addressed to Mr Do at [address].
· Cover letter and Account Summary from St George dated 7 July 2015 to Mr Do about the 60 repayments of his Fixed Rate Loan for a Honda Accord Euro sedan.
· 4 letters from Auto & General Services Pty Ltd dated 17 July, 20 July and 29 July 2015 to Mr Do, 2 of them regarding insufficient funds in CBA account ending 5992 to pay the car insurance of $1099.44 for a Honda Accord Euro sedan and 1 cancellation notice.
· Notice of assignment of debt and privacy and credit reporting policy from Credit Corp Group dated 9 February 2017 to Mr Do stating that on 31 January 2017 St George assigned Mr Do’s debt of $17,876 to them for collection as Mr Do had defaulted on the loan.
· A letter from NCML dated 18 July 2017 to Mr Do informing him that the car with VRN CJA64G had 13 outstanding trips on the M7 between 8 November 2015 and 23 February 2016 for a debt of $284.01.
· Toll Notices dated 9 February 2017, 2 March 2017, 3 March 2017, 5 April 2017, 11 April 2017, 11 May 2017, 11 May 2017 for M5 trips, VRN DKX36K, on 31 January 2017, 31 January 2017, 22 February 2017, 10 March 2017, 25 March 2017, 7 April 2017, 9 April 2017 addressed to Mr Do at [address].
Credibility
The Tribunal has significant concerns regarding Mr Do’s credibility. It also has issues with the evidence given by Ms Bui and her family.
The Tribunal is not required to uncritically accept all or any of Mr Do’s claims, or make his case for him.[1] The mere fact that a person makes a claim does not establish the genuineness of that claim. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out,[2] although the concept of an ‘onus or burden of proof’ is one that is buried in the practice and procedure of superior courts of law[3] and, as a general proposition, has no application to administrative decision-making.[4] While it is inappropriate for the Tribunal to require particular evidence as a precondition for accepting that an applicant’s claims are true,[5] there is no burden upon the Tribunal to make out a case that an applicant has failed to adequately advance.[6] Rather, it is a generally-expressed and recognised principle that it is for an applicant to provide his or her evidence and arguments in sufficient detail to enable the Tribunal to establish the relevant facts.[7] As Kirby J observed in Dranichnikov v MIMA:[8]
The Tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out, and find, any available basis which theoretically the Act provides for relief. [The High Court] has rejected that approach to the Tribunal's duties. The function of the Tribunal … is to respond to the case that the applicant advances …[9]
Much of the material advanced by Mr Do in support of his case includes inconsistencies and omissions, is implausible, or remains insufficient and inadequate to enable the Tribunal to establish the relevant facts.
[1] SZLVZ v MIAC [2008] FCA 1816 at [24] per Middleton J (SZLVZ v MIAC) at [25].
[2] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[3] Sun v MIBP [2016] FCAFC 52 (Sun v MIBP) at [63] per Flick and Rangiah JJ.
[4] Sun v MIBP at [6] per Logan J and [65] per Flick and Rangiah JJ; SZLVZ v MIAC at [24] per Middleton J citing Yao-Jing v MIMA (1997) 74 FCR 275 at 288.
[5] Machmud v MIMA [2001] FCA 1041.
[6] Sun v MIBP at [69] per Flick and Rangiah JJ; SZLVZ v MIAC citing Prasad v MIEA (1985) 6 FCR 155 at 170.
[7] Aporo v MIAC (2009) 113 ALD 46; [2009] FCAFC 123 Spender, Moore and Foster JJ and Sun v MIBP at [69] per Flick and Rangiah JJ; SZLVZ v MIAC citing MIMIA v Lat (2006) 151 FCR 214.
[8] [2003] HCA 26 at [78], (2003) 77 ALJR 1088 at 1100.
[9] As cited in Sun v MIBP at [69] per Flick and Rangiah JJ.
The Tribunal acknowledges that a small number of the adverse details referred to below, while relevant, relate to more minor issues. It does not generally consider that minor or trivial matters of fact should, on their own, undermine a witness’ credibility.[10] But, when all the problematic evidence set out below is considered together, the Tribunal has found things that might otherwise appear inconsequential, collectively take on more significance.[11] Therefore, those less substantial inconsistencies have been given some weight. While each may, itself, be minor, as a whole they provide a picture of witnesses who have made small mistakes about supposedly unimportant details because they are not telling a story from their personal experience.
[10] BEL16 v MHA [2019] FCA 1678 at [20] and [108] per Beach J.
[11] MIAC v SZRKT [2013] FCA 317 at [78] and Sundararaj v MIMA (1999) FCA76; MIAC v SZNSP (2010) 184 FCR 485 per Katzmann J at [49], SZLUN v MIAC [2009] FMCA 1013.
There are also some claims that, when viewed together, appear implausible to the Tribunal. The Tribunal does not generally place weight on its mere opinion of whether a claim seems probable, particularly if there might be any other explanation regardless of how unlikely.[12] However, when the sheer number of concerns below are viewed in conjunction with these implausibilities, the Tribunal has factored them into its decision about Mr Do’s overall credibility. It has not considered them in its reasoning for findings on any particular claim.
[12] W148/00A v MIMA (2002) 185 ALR 703 at 717 per Tamberlin and Nicholson JJ and MZYWL v MIMA [2013] FCA 895, Applicant M164/2002 v MIMIA [2006] FCAFC 16, SAAG v MIMIA [2002] FCA 547.
Mr Do and Ms Bui
Mr Do’s and Ms Bui’s evidence about their joint bank account, Mr Do’s work history and salary, the Honda Accord, Ms Bui’s work hours and schooling, and the Adele tickets was inconsistent and Mr Do’s explanations were unpersuasive. The concerns set out below undermine the Tribunal’s confidence in Mr Do’s truthfulness. They also bring into doubt whether Ms Bui’s evidence can be trusted as it regularly failed to support Mr Do’s claims and evidence. After considering all the material below, the Tribunal finds that Mr Do and Ms Bui are not credible witnesses and none of their claims can be accepted on face value.
Joint Bank Account
The evidence about the use of the CBA joint bank account ending 5992 is problematic. The inconsistent and unlikely evidence undermines Mr Do’s overall credibility.
First, according to the delegate’s notes of the 2017 interview, when asked the purpose of the joint bank account Mr Do said ‘Both our incomes go into the joint bank account at CBA and my wife controls it.’ This is inconsistent with an earlier statement to the delegate and the evidence to the Tribunal that Ms Bui’s salary has always gone into her personal CBA account. The Tribunal put to Mr Do under s.359AA that he had told the delegate that Ms Bui’s salary went into the joint account. He stated that he never said that her salary went into the joint account. He was sure that he had told the delegate that her salary went into her personal account. The Tribunal has considered Mr Do’s response, but finds the delegate’s contemporaneous notes of the interview that set out the inconsistency to be more reliable.
Second, Mr Do told the Tribunal that the fact that Ms Bui’s salary does not go into the joint account is a hangover from when he was gambling. He told the delegate in March 2017 that he had not had access to the joint account for about a year, being early 2016. Mr Do told the Tribunal that Ms Bui had ‘redirected’ her salary into her personal account because she was concerned that he would use it to gamble if it was in the joint account. The Tribunal could not find any evidence in the 2014 or 2015 bank statements that Ms Bui’s salary was ever deposited in the joint account such that she would need to ‘redirect’ her salary into her personal account due to Mr Do’s gambling. Mr Do’s evidence to the Tribunal that Ms Bui redirected her salary from the joint account to keep it from him is also inconsistent with his and Ms Bui’s other evidence that her salary was never deposited into the joint account.
The Tribunal has further concerns about this evidence in that it does not seem logical. It can see no reason why Ms Bui would feel the need to redirect her salary to her personal account from the joint account if, as claimed, Mr Do no longer had access to the joint account. This is particularly the case since Ms Bui claims in her 2017 declaration that their day to day expenses came out of the joint account. Therefore, she would just have been transferring the money back into the joint account again for that purpose.
Third, there is inconsistent evidence about whether and when Mr Do had access to the joint bank account. Mr Do told the delegate in March 2017 that he did not have, and had not for the past year had, access to the joint account. In Ms Bui’s 2018 declaration she states that there was a period when Mr Do did not have access to the joint account due to his gambling habit, but he had recently regained access. But in Ms Bui’s January 2017 declaration she stated that they both had access to the account which is inconsistent with both Mr Do’s evidence in March 2017 and their subsequent evidence. The Tribunal put this inconsistency to Mr Do who told the Tribunal that all he could say was that at the time he did not have a bank card to the joint account and no salary was transferred to that account. He said he now has access to the account, but then he did not. He did not address the Tribunal’s concerns about the statement that they both had access in Ms Bui’s 2017 declaration.
Fourth, the Tribunal has a concern about the timing of when Mr Do claims he was blocked from using the joint account. He told the delegate in March 2017 that he had not had access to the joint account for about a year, being around early 2016. But he told the Tribunal that he did not started gambling until early 2016 when his friends would take him to the pub and he played the poker machines. He and Ms Bui argued about the fact that he was often out with friends and came home late. But it was not until ‘they’ (which the Tribunal took to mean the Bui family, possibly together with Mr Do’s aunt and/or other family) noticed the withdrawals from the account that Ms Bui confronted him and he confessed to her that he was gambling. It was only then that she blocked his access to the account. This was after he had lost considerable money so it must have been after early 2016 when he had only just started gambling. Therefore, his evidence to the Tribunal about when he started gambling is necessarily inconsistent with what Mr Do told the delegate about when he lost access to the joint account. The Tribunal notes with interest that while it has accounts for 2014 and 2015, as well as 2017, 2018, and 2019, it has no accounts for 2016 to shed light on this question.
Fifth, Ms Bui told the Tribunal that her salary is deposited in her personal CBA account and she puts money in the joint account as necessary to cover the day to day expenses paid out of that account like food, eating out, and the BUPA direct debit. The Tribunal has reviewed the statement for Ms Bui’s personal CBA account submitted in support of the application. It confirmed that Ms Bui’s salary from Berala Hotel was deposited in that account. The account is well notated with transfers commonly identified with a reference like ‘Transfer from THI BUI CommBank app cigs’, ‘Transfer from CONG BUI CommBank app haircut’, or ‘Transfer to other Bank CommBank app Mario Cart’. The Tribunal found no evidence of any transfer of funds to the joint bank account. Between 12 December 2018 to 12 March 2019 there were no transfers from Ms Bui’s account to a CBA account ending 5992, transfers on the joint account statements from a CBA account ending 2998 or in Ms Bui’s name, or withdrawals (cash or otherwise) from Ms Bui’s account coinciding with a deposit into the joint account. There is no evidence in the statements provided to support the claim that Ms Bui transfers money as necessary into the joint account or that her money ends up in that account at all.
Mr Do’s Pre-2018 Employment
Mr Do told the delegate that he was unemployed and told the Tribunal that he had not worked until he started at the dry cleaners in October 2018. The Tribunal has difficulty with this evidence because it has inconsistent information before it and it appears implausible.
First, in his 2018 declaration Mr Do states that he had worked part time. He also provided the Tribunal with an Employee Record from Breadtop K & S Food Service Pty Ltd identifying the joint account as his bank details for the deposit of his salary. This information is inconsistent with the evidence that Mr Do had not worked before October 2018. The Tribunal does note that there do not appear to be any deposits from Breadtop, but it does not have account statements for over 18 months between 24 July 2015 and 1 February 2017. It has also taken into consideration that Mr Do told the Tribunal that at the date of the hearing he still did not have a tax file number, although this does not precluded him from having worked ‘under the table’ and it did not stopped him working from October 2018.
Second, in March 2017 Mr Do told the delegate that ‘both salaries’ went into the joint account. When the delegate pointed out he had said he was unemployed, Mr Do said he meant ‘it is our money’, but Ms Bui’s income. However, in his 2017 declaration he states that he and Ms Bui hardly went out because their days off were not the same. In response to this information Mr Do told the Tribunal that if he was unemployed there could not be any salary going into any account and the statement about days off must have been a misunderstanding by the delegate. When the Tribunal put Mr Do on notice that the inconsistency undermined his credibility, Mr Do said that the evidence is in the bank accounts. If no money was going into the account then he did not make the statements and it was a misunderstanding by the delegate. The Tribunal again notes it has no accounts from 24 July 2015 to 1 February 2017. Further, the reference to different days off was not said to the delegate. It was included in a declaration written by Mr Do and given to the Tribunal.
Third, the Tribunal has two other concerns that make it believe it is implausible that Mr Do did not have any income except for Ms Bui’s salary before October 2018:
· The Tribunal notes that in July 2015 St George gave Mr Do a car loan in the vicinity of $17,000+ to buy a Honda Accord. He told the Tribunal that he did not declare Ms Bui’s income when acquiring the financing and she did not guarantee the loan. Despite his evidence to the contrary, the Tribunal does not believe that Mr Do would have been given the loan if he had told the dealership and St George that he was unemployed and had no personal income. It is far more likely that he produced at least some proof of income. It further notes that this is where the gap in the bank statements starts.
· Since Ms Bui’s salary has never been deposited into the joint account, and that is the only account Mr Do claims to have access to, it is difficult to see how, if Mr Do was not working, he could get access to the large sums of money he says he lost gambling. Again, this is during a period when the Tribunal has no corroborative bank statements.
It is the Tribunal’s belief that Mr Do has been untruthful about his employment prior to being hired by the Erskineville dry cleaner in 2018 and this undermines his credibility generally.
Mr Do’s Salary
Mr Do told the Tribunal that he had been working as a dry cleaner since October 2018. He said he was being paid in cash because he did not have a tax file number, although he did not explain how the two are connected. Mr Do was inconsistent about the extent to which he deposits his salary in the joint bank account and gave inconsistent evidence to that given by Ms Bui. This evidence undermines his credibility.
First, initially Mr Do said that he puts the cash he is paid into the joint account. When the Tribunal confirmed that the $1000 he said he is paid in cash is deposited into the joint bank account, Mr Do said ‘yes’. However, when the Tribunal suggested that bank statements from 2018 should support this, Mr Do said it is not always bank statements that are the proof of mutual finances; he uses the cash to pay for both of them and their joint finances are not necessarily demonstrated by bank statements or the movement of money in and out of the joint account. He said he mostly uses cash not withdrawals from the account. When the Tribunal pointed out that he had just confirmed that he deposited his salary in the bank account then used it for day to day expenses, Mr Do changed his evidence again and said that he meant that of his weekly pay of $600 he could put $200-$300 in the joint bank account and give Ms Bui $200-$300. He said he could not deposit the whole $600 in the bank account because he has to retain some of it to use. He could not adequately explain the inconsistency identified by the Tribunal or his varying evidence provided to account for it.
Second, the Tribunal has reviewed the payslips submitted by Mr Do in order to establish whether he was being truthful about his salary and that $200-$300 was deposited in the joint account. The payslips are not for $600 per week as claimed. Mr Do was paid fortnightly in the amounts of $1064.32 on 21 October 2018, $1064.32 on 4 November 2018, $1029.80 on 18 November 2018, and $1098.84 on 2 December 2018. The Tribunal checked the bank statements for this period and there are no cash deposits between 29 September 2018 and 2 January 2019. Therefore, none of Mr Do’s salary was deposited into the joint account.
Third, Ms Bui told the Tribunal that they put money in the account as needed and there are no regular deposits. She said that no salaries go into the account, but if there is money left over at the end of the week they put it in the joint account. The Tribunal put to Mr Do under s.359AA Ms Bui’s evidence that no salaries go into the account. In response he changed his evidence back again, saying he does not have a very large salary and does not put money into the account regularly. He is familiar with paying cash so he keeps the cash, gives Ms Bui some money to keep, and she administers the finances. He claimed that the fact that the joint bank account is not used very often does not mean that they are not in a genuine relationship. What counts is trust, knowing each other’s finances, and the future they have built up together. The Tribunal concedes that use of a joint account is not a prerequisite for a couple to have joint finances. The Tribunal’s concern is with the inconsistent and changing evidence surrounding Mr Do’s salary. Mr Do did not address this concern.
The Honda Accord
Included in the documents provided by Mr Do is documentation related to his purchase of a Honda Accord (VRN CJA64G) financed by St George Bank. Repayments of $391.08 per month were to begin on 7 August 2015 and continue for 60 months ending on 7 July 2020.
On 17 July 2015, Mr Do received a notice from his insurer informing him that they had attempted to take the insurance payment for the Honda Accord of $1090.44 out of his CBA account ending 5992 (the joint account), but there were insufficient funds. Mr Do received further notices from his insurance company in July 2015 informing him that they had again attempted to take the car insurance payment out of the joint bank account but there were insufficient funds and cancelling the car insurance. On 18 July 2017, Mr Do received a letter from NCML regarding unpaid toll notices for VRN CJA64G (the Honda Accord) travelling 13 times on the M7 between 8 November 2015 and 23 February 2016. This indicates that Mr Do drove the Honda Accord from July 2015 until at least 23 February 2016. On 9 February 2017, Credit Corp Group notified Mr Do that his St George debt of $17,876 for the Honda had been transferred to them and the amount owing at that date was now $17,931.06.
The Tribunal asked Mr Do and Ms Bui about the Honda Accord. Their evidence was inconsistent and evasive. Mostly, however, much of Mr Do’s story about the car was implausible and evolved over time to address the Tribunal’s difficulties with his evidence. As noted above, while the Tribunal has put little weight on other evidence that is merely improbable, in the case of the Honda Accord the situation is so unlikely for a genuinely married couple that when viewed together with its other concerns, and all the inconsistencies with Ms Bui’s story in particular, it believes the implausibility of his overall evidence about the Honda Accord appreciably weakens Mr Do’s credibility.
First, Mr Do told the Tribunal that the dealer organised the financing with St George, who gave him the loan (apparently in excess of $17,000) even though he was unemployed. The loan was in his name alone, not Ms Bui’s name, Ms Bui did not guarantee the loan as the working spouse, and St George did not want to see the couple’s income. The Tribunal finds this implausible. At the very least Mr Do would have had to assure St George that he had a sufficient salary to cover the payments on the car, if not provide actual payslips. This indicates that either Mr Do has mislead the dealer and bank by making fraudulent declarations about his income or he has been untruthful to the delegate and Tribunal about his employment. In either case it does not reflect well on his credibility.
Second, the Tribunal asked Mr Do about the unpaid expenses on the Honda Accord and in particular why, if he had no income and Ms Bui was putting money into the joint account as necessary to pay their expenses, she had not transferred sufficient funds to pay the insurance and St George instalments for their car. He said that he did not tell Ms Bui that he had bought the Honda Accord. The Tribunal confirmed that in 2015 Mr Do took on over $17,000 in debt and bought the Honda Accord without telling Ms Bui who was their sole income earner. He said that was correct. When the Tribunal asked how, if they were living as a married couple, she could not have notice he was driving a new car, he said that he told her it belonged to a friend. When it asked whether she had asked what had happened to the old car, he said she did not ask. The Tribunal notes Mr Do’s statement that documentation is not what is important in determining whether a couple lives a joint financial life, what counts is trust and knowing each other’s finances. As implausible as it is that Mr Do is telling the truth about this situation, even if he is, on his own evidence it does not bode well for his credibility when he says that he and Ms Bui have joint finances that support that they are in a genuine relationship.
Third, at first Mr Do said that Ms Bui found out about the Honda Accord when the insurance company sent the notice that there were insufficient funds in the joint account. When the Tribunal asked why she did not then pay the insurance, Mr Do changed his evidence and said he was not working so he was hesitant to tell her about the notice. The Tribunal again questioned whether this story was plausible if Mr Do and Ms Bui were living as husband and wife, particularly given the inconsistency about when or whether Ms Bui found out about the Honda’s ownership and financing. Mr Do said at first she did not know, but then she suspected something so he finally told her. Mr Do did not explain the inconsistency or why Ms Bui did not then transfer the money into the joint account to pay the insurance and St George instalments given she was the couple’s sole source of support.
Fourth, the Tribunal’s concerns about the evidence surrounding the Honda Accord significantly increased after talking to Ms Bui about the car. Initially she said Mr Do had a few cars and the Honda Accord was probably one of the really, really old ones he had purchased. So the Tribunal prompted her, saying that in 2015 Mr Do had purchased a Honda Accord and asking her if she was aware of that car. Ms Bui became evasive saying he had purchased four cars. A car is a fairly substantial purchase for a couple who it is universally agreed is struggling financially. The Tribunal found it surprising that if Mr Do had purchased four cars in their six years of marriage, that Ms Bui would not have been able to immediately recall the Honda Accord amongst them if Mr Do’s unusual story about telling her it was a friend’s and then her finding out about its purchase and financing were true.
The Tribunal clarified that it was interested in the events surrounding the purchase of the Honda Accord in 2015 financed by St George Bank and asked Ms Bui if she knew about that car. She said she knew about the car, but not about the financing. She confirmed that Mr Do had just came home and told her that he had changed cars and that he had bought the car with cash like his other cars. This is inconsistent with Mr Do’s evidence that he told her it was a friend’s car and eventually did tell Ms Bui about the financing. Also, setting aside the question of how Mr Do regularly bought cars for cash without Ms Bui’s involvement if he was not working and she was his sole means of support, the Tribunal asked Ms Bui why she had not transferred money to paid the bills for the car. She said it was Mr Do’s car and Mr Do’s responsibility. She had seen some notices about the Honda, but he had said he had fixed it. Ms Bui did not explain how she could have thought that Mr Do had fixed a financial problem like insufficient funds in the joint account if all his income came from her and she was the only one transferring money into that account.
Fifth, Mr Do told the Tribunal that he was no longer driving the Honda Accord which was hidden at his friend’s house because he still owed money to the bank. The Tribunal confirmed that he still owns, but does not drive, the Honda Accord because he wants to be able to pay off the car before driving it again. He said he cannot sell the car because he still owes money on it and the finance contract does not allow him to sell it until it is paid off. Ms Bui told the Tribunal that the Honda Accord had been sold. Mr Do now drives a BMW.
The Tribunal put to Mr Do under s.359AA that Ms Bui told a very different story about the Honda Accord. It asked him to explain the inconsistencies about how Ms Bui found out about the Honda, the financing, and whether the car has been sold. Mr Do responded that when he signed the contract he wanted to hide it from Ms Bui until he had paid off the Honda. He did not explain how he thought he could pay off the car without Ms Bui knowing if she was his only source of money. When he could not pay off the car he hid that from Ms Bui and told her he had sorted it out because he did not want her to be concerned. Currently the car is at his friend’s place and he is putting things in place to start paying the money owing on the Honda Accord. He had intended to pay off the debt before confessing to Ms Bui, but unfortunately it had now been raised with her at the hearing. Rather than explaining the inconsistencies and other problematic aspects in the story about the Honda Accord, this explanation merely created new inconsistencies in Mr Do’s evidence, for instance that Ms Bui has only at the hearing found out about the ownership and financing of the car.
Sixth, Mr Do claims that he is paying off the Honda Accord. This is inconsistent with his evidence about what he does with his salary set out above. Also, he claims that until the hearing Ms Bui was unaware that the Honda Accord had not been sold. So it is difficult to see how Mr Do could account to Ms Bui for the money he is supposedly sending to Credit Corp Group given even the original repayments before the principle was increased were a fifth of his small monthly salary. Finally, the Tribunal has reviewed the joint account statement for 2019 and can see no indication that Mr Do is repaying the loan. Nor has he provided any evidence that he is repaying the loan other than from the joint account despite being put on notice that the Tribunal had concerns about the story surrounding the Honda Accord and being invited to provide any additional information that may assist the Tribunal in its decision on 22 November 2019.
Ms Bui’s Work Schedule
The Tribunal discussed Ms Bui’s work schedule with Mr Do. Both Mr Do and Ms Bui told the Tribunal that Mr Do gets up at 6:30am and leaves at 7am to be at work by 8am. They also agreed that Ms Bui does shift work and her shifts change regularly. There are four possible shifts that Ms Bui might work: 7am to 5pm; 12pm to 9pm; 5pm to 1am; or 9pm to 5am. Otherwise, however, their evidence was inconsistent. This significantly undermines Mr Do’s credibility because if he and Ms Bui have been living together as husband and wife since 2013 they would have given similar evidence about when Ms Bui works.
Mr Do told the Tribunal that he usually gets up first and Ms Bui sleeps late because she has an irregular work schedule. He said Ms Bui rarely works the 7am to 5pm shift and she rarely wakes up early in the morning. Every morning he wakes up first, gets ready, and leaves for work. When he leaves for work Ms Bui is often still asleep. Ms Bui usually gets up late, eats, goes shopping, comes back home, prepares her dinner box and goes to work. Ms Bui told the Tribunal that she usually works the 7am to 5pm shift or the 5pm to 1am shift. The 7am shift would require Ms Bui to leave the house by 6:30am and therefore get up well before Mr Do. If this is one of her usual shifts she cannot usually get up late or be asleep when Mr Do leaves at 7am. Ms Bui also told the Tribunal that while she only occasionally works the 12pm to 9pm shift, the week of the Tribunal hearing she had worked the 12pm to 9pm shift for two days and then had three days off.
The Tribunal put to Mr Do under s.359AA the inconsistency about whether one of Ms Bui’s usual shifts is the 7am to 5pm shift. In response Mr Do said that he had told the Tribunal Ms Bui works three different shifts, but over the two weeks leading up to the hearing she had been mostly working the morning shift. He then changed his evidence and said no, she had been working the ‘evening shift’. Mr Do had previously referred to a morning, afternoon, and two possible night shifts making the ‘evening shift’ most likely 5pm to 1am, but possibly 9pm to 5am. He explained that this was why he had said she works the morning shift the least. He told the Tribunal that Ms Bui has been working shifts for years and he cannot remember what shifts she generally works most often because the roster changes every week.
The Tribunal has a number of issues with Mr Do’s response to the inconsistency about how regularly Ms Bui works the 7am to 5pm shift. Most obviously, Mr Do’s explanation for that inconsistency, that Ms Bui had most recently been working the ‘evening shift’, is problematic because Ms Bui told the Tribunal that most recently she had been working the 12pm to 9pm shift (clearly the afternoon, not evening, shift). While it might appear a minor thing, the Tribunal has also viewed adversely the fact that Mr Do changed his evidence during the course of his explanation for the inconsistency. The Tribunal believes that if his explanation had been genuine he would not have initially gotten the shift he was claiming she worked wrong. This is the sort of mistake and correction a person might make if he is trying to keep a story straight in his head rather than speaking from actual lived experience.
Ms Bui’s TAFE
Ms Bui was going to TAFE fulltime and working part time for the majority of her marriage to Mr Do. TAFE courses are designed and taken to acquire skills that can be used directly in the job market. Both Mr Do and Ms Bui, as well as Mr Bui and Thi Van Bui, identified their careers, job prospects, and earning capacity as important aspects for their future, and their financial capacity features prominently in the plans they claim to be working towards for their family. Also, a general consensus can be inferred from the statements that Ms Bui’s lack of free time and pressure due to studying and working has been problematic. It would seem reasonable to expect, therefore, that Mr Do would have fairly detailed knowledge of Ms Bui’s TAFE. However, Mr Do’s evidence about Ms Bui’s TAFE was inconsistent, wrong, and at best rudimentary. It seriously undermines that he is a credible witness.
First, although Mr Do told the Tribunal that Ms Bui was no longer in TAFE, he said that he could not remember when she had finished studying fulltime. He then said that it was at the end of 2014, which is just 18 months into their marriage. This is inconsistent with his 2017 declaration where he states that Ms Bui was still working part time and going to TAFE fulltime. It is also inconsistent with the delegate’s decision which clearly indicates that at the March 2017 interview Mr Do discussed Ms Bui’s TAFE in such a way as to give the impression that Ms Bui was still attending at that time. When this was put to Mr Do, he said he did not tell the delegate that Ms Bui was in TAFE in 2017, she has been working for a long time. This answer seems to indicate to the Tribunal that Mr Do had forgotten that Ms Bui worked while she was attending TAFE. In her 2017 declaration Ms Bui stated that she was going to TAFE fulltime and working part time. Ms Bui told the Tribunal that she completed her TAFE course at the end of 2017, which is close to five years into their marriage. That is a meaningful discrepancy in time, not just off by a year or so. When Ms Bui’s evidence was put to Mr Do he said he can only apologise because he only said he could not remember exactly when she finished and it was his mistake.
Second, in the delegate’s decision she states that Mr Do knew that Ms Bui was studying, but could not tell her where the TAFE was located. Mr Do told the delegate that Ms Bui was studying at Bankstown. Bankstown is about 5 minutes from Condell Park. Ms Bui was, in fact, studying fulltime at Sydney Ultimo TAFE, which is about 40 minutes by car and around an hour by train from Condell Park. These two locations would have had appreciably different impacts on their day to day life with a two hour round trip to Ultimo noticeably adding to how busy Ms Bui was, an issue in the marriage raised by both of them in their statements. When asked about his evidence to the delegate, Mr Do said that he realised at the time that he had given the delegate the wrong answer, but the delegate did not give him a chance to change his evidence. Even if this is true, such a basic mistake about such a dominant day to day detail of Ms Bui’s life suggests that his evidence was more learned than lived, particularly given the impact the distance to Ultimo must have had on Ms Bui’s schedule. It may on its face appear minor, but when combined with all the other incorrect information given by Mr Do over the course of the application it adds to a picture of someone who is not giving truthful evidence about his day to day life and what he knows about Ms Bui.
Third, Mr Do told the Tribunal that Ms Bui studied hospitality at TAFE. Ms Bui works in the hospitality industry, but she told the Tribunal she studied events management which, while there might be some crossover, is very different to hospitality. Again, although this may seem to be a small distinction, if Mr Do and Ms Bui were being honest in their evidence about their relationship, it is reasonable to expect that Mr Do would know enough about what he wife was doing until the end of 2017 to be able to articulate it more accurately. When viewed together with Mr Do’s other more minor errors it raises the impression that he is a witness with little direct knowledge of Ms Bui’s life which undermines his credibility generally.
Adele Tickets
The Tribunal has before it a receipt from Ticketek in Ms Bui’s name for four tickets to an Adele concert at ANZ Stadium on 10 March 2017 in an amount of $830.50. Mr Do’s evidence about the Adele tickets brings into serious doubt that he is telling the truth when he says that he and Ms Bui are living together as husband and wife. This undermines his credibility generally.
When the Tribunal enquired who had gone to the concert Mr Do said that Ms Bui had attended. It enquired who had used the other three tickets and Mr Do became evasive asking if the Tribunal was talking about his infringement notices and whether it was referring to 2017. The Tribunal pointed out to Mr Do that Adele tickets were a substantial expenditure for a couple who claim to have no money (the tickets were over $200 each) so it would have been a big event in their calendar. It asked if he was aware that Ms Bui had bought the tickets and Mr Do said ‘no’. When the Tribunal asked again if he was aware if Ms Bui had gone to the concert he changed his evidence and said he was not aware if she had attended the concert. When the Tribunal queried how, if Mr Do was living with Ms Bui as husband and wife, he could be unaware whether or not she had attended an expensive concert, he only said that she did not tell him, she did not mention it to him so he did not know.
Ms Bui told the Tribunal that she bought the Adele tickets for friends and she did not attend the concert. When asked if Mr Do was aware she had purchased the tickets she said ‘no’; because she was not really buying them she did not think she needed to tell him. The Tribunal put Ms Bui’s evidence to Mr Do under s.359AA. He said in his opinion this was not important. Ms Bui bought the tickets for friends not for herself so she did not go to the concert and did not tell him about them because it did not impact on their finances.
As the Tribunal made clear, it is not concerned with the fact that Mr Do did not know that Ms Bui had purchased tickets. It is concerned that he did not know whether or not she attended the concert. Initially Mr Do told the Tribunal that Ms Bui did go to the concert. He then changed his evidence and said that he did not know whether she went to the concert. He did not say he knew nothing about Adele tickets because Ms Bui had never gone to an Adele concert. He did not say she would not have spent $800 without telling him. As well as his changing evidence, it is problematic that he said he did not know if she went to the concert because she did not tell him. It raises a natural inference that if Ms Bui had gone to the concert Mr Do would not necessarily have been aware of that fact, which seems very unlikely if they were living together as husband and wife given it would have been a major event in her social calendar. It also implies that he believes it is possible she could have spent over $200 on a concert ticket and attended the concert, first, without telling him and, second, without him noticing. The Tribunal finds that the tenor of Mr Do’s evidence about the concert significantly undermines his claims to have a genuine relationship with Ms Bui and so also damages his credibility generally.
Photographs with Friends
When the Tribunal asked why he had submitted almost no photographs of Ms Bui and himself with friends, Mr Do told the Tribunal that he does not like to take selfies with friends in social situations. This is not reflected in the fact that he did submit 38 photographs of just the two of them, two miscellaneous scrapbook-type photo pages, and 24 wedding photos.
Also, when the Tribunal asked Ms Bui about the lack of photographs she did not say that Mr Do does not like to take photos with friends. She said that there were photographs and she had asked Mr Do to print them out. He had now lost his phone and so the photographs were gone. The Tribunal confirmed with Ms Bui that there were photographs of Mr Do with friends in social settings, but he had lost them when he lost his phone. She said ‘yes’, his new phone, the i6. Ms Bui said she does not have any photographs on her phone.
When the Tribunal put this inconsistency to Mr Do under s.359AA he said that they did socialise. They visit each other’s friends and go out, but he does not like to take photos. Paradoxically, he also said that the photographs on the missing phone were from five years ago. In his explanation Mr Do also raised another contradiction stating that the ‘lost phone’ was his i4 which would not store the pictures for five years. Ms Bui had said it was his new i6 that had been stolen, not his old i4 which could not retain the photos for so long. Incongruously, he then said that there were some photos on his mobile and he would send them. He submitted one further photograph with no indication when it was taken.
The Tribunal finds that the evidence given in response to its query about the lack of photographs documenting Mr Do’s social life is unreliable and inconsistent. It significantly undermines Mr Do’s credibility as a witness of truth.
Other Matters
The Tribunal asked Mr Do if Ms Bui had helped compile the documents he had provided to the Tribunal as evidence in his case. He said she had and that she had read the Tribunal’s letter to Mr Do requesting information in support of his case which included a list of evidence that is commonly submitted. The Tribunal asked Ms Bui if she was involved in compiling the documents that were sent to DOHA or the Tribunal, but she said it was all done by the lawyer. When the Tribunal tried to clarify if she had helped Mr Do or told him to do it on his own she equivocated saying a bit of both. The Tribunal found this to be an evasive answer to a straightforward question. It notes that from the evidence she gave at the hearing on a number of matters, in particular the Honda Accord, it is clear she did not know anything about a significant number of the documents given to the Tribunal. For instance, all the information necessary for her to know the Honda had been financed were in the documents provided, but she told the Tribunal Mr Do paid cash. While it is a minor inconsistency, the Tribunal has still given some adverse weight to Ms Bui’s evidence on the question of compiling the documents when finding that she and Mr Do are not credible witnesses.
In Mr Do’s 2017 declaration he says that they are young and have not thought about children. In Ms Bui’s 2017 declaration she says they have discussed children (they will have a boy then a girl), but she is studying and working, they are young and financially unstable, and would not be able to dedicate the time to a child. Again, while this is a minor inconsistency, for the reasons previously discussed the Tribunal has given it some weight in finding Ms Bui and Mr Do are not credible witnesses.
The Tribunal notes that in their January 2017 declarations Mr Do and Ms Bui state that they have been living together ‘for over 2 years since marriage’. Mr Do and Ms Bui married in May 2013 and so ostensibly had at the date of the declarations been living together for three and a half years. This is an odd detail for them to both generalise in this way, particularly since directly afterwards in the declarations they are much more accurate about how long they had known each other. Married couples generally refer to the length of the marriage by the number of anniversaries they have had which would have been three in January 2017. For the same reasons that have previously been discussed, the Tribunal has given this a small amount of weight in finding Ms Bui and Mr Do are not generally credible.
Ms Bui’s Family
The Tribunal had some difficulties with the information provided by Ms Bui’s family. For instance, Ms Bui’s sister, Thi Van Bui, first told the Tribunal that Mr Do and Ms Bui are with each other all the time. She then said that the family rarely sees each other except on special occasions even though they live in the same house. When the Tribunal confirmed that she does not see them at home very much she said she does a lot of overtime. Ms Bui’s father, Mr Bui, in his 2013 declaration also states that he sees Mr Do and Ms Bui every day. But this appears inconsistent with Thi Van Bui’s evidence that the whole family rarely see one another except on special occasions.
In her 2017 declaration Thi Van Bui states that Mr Do and Ms Bui have overcome obstacles together and show their commitment through the simplest acts of kindness, forgiveness and care for each other. But when the Tribunal asked her to explain her statement that their commitment is shown through simple acts of kindness and forgiveness she could only say that Mr Do has had fines and there may have been a bit of gambling, but she is not sure. According to Mr Do and Ms Bui, Mr Do’s gambling was a major dispute within their household so the Tribunal might expect that a family member with close day to day contact with them would have been more definitive in her knowledge.
Mr Bui, in his 2017 declaration, said that Mr Do and Ms Bui are strong and dependent on each other. When the Tribunal asked him to give it an example of this he said that they are self-sufficient and now that they have employment he sees them being very happy together. However, in 2017 Mr Do was not employed and in his 2013 declaration Mr Bui said he supports them financially and will do so until they move out. Ms Bui’s mother, Mrs Tran, also told the Tribunal that she is helping them and cooking for them so they have meals when going to and coming home from work. This appears inconsistent with Mr Bui’s evidence that they are self-sufficient. In her 2013 declaration Mrs Tran said that she and her husband will help the couple until they are financially independent, which was clearly not the case in 2017. The Tribunal does not believe that Mr Bui’s 2017 declaration that Mr Do and Ms Bui are ‘dependent on each other’ was intended to refer to being self-sufficient, particularly since at that time, while his daughter may have been, as a couple they clearly were not self-sufficient. Rather, the Tribunal believes that Mr Bui’s evidence at the hearing indicates that he could not give the Tribunal any example of how, now or in 2017 when the statement was made, Mr Do and Ms Bui are strong and dependent on each other.
Also in Mr Bui’s 2017 declaration he said Mr Do brings Ms Bui down to earth, grounds her temper and personality. When the Tribunal asked for an example of how he grounds her temper, Mr Bui said that Mr Do helps Ms Bui to fully understand the whole Vietnamese culture. There are some Vietnamese words that Ms Bui does not ‘catch entirely’, and ‘the reaction and thinking’ that Ms Bui is not familiar with Mr Do has been helping her to understand and ‘share those concepts’. The Tribunal is not sure how this is an example of Ms Bui’s temper. The Tribunal also notes that in his 2017 declaration Mr Do said that he and Ms Bui think the same way about life and he told the Tribunal that Ms Bui is never upset. This does not seem to gel with Mr Bui’s evidence.
Conclusion
When the Tribunal looks at all the evidence and explanations above collectively, it comes to the conclusion that Mr Do has not been truthful and has attempted to mislead the Tribunal with his evidence. For the reasons below it rejects the evidence in the 2013 relationship statements, Mr Do’s and Ms Bui’s 2017 declarations, and their 2018 declarations. It also rejects Thi Van Bui’s evidence and gives no weight to the information in the statutory declarations made by the rest of Ms Bui’s family.
Mr Do states in his 2017 declaration that Ms Bui was going to Ultimo TAFE fulltime and working part time. Given his inconsistent evidence at the interview and to the Tribunal about Ms Bui’s study, the Tribunal does not consider this correct information is evidence of his truthfulness or the reliability of the declaration. Also, deficiencies in the 2017 declarations are: Mr Do and Ms Bui gave inconsistent evidence about whether they have considered children; Mr Do refers to them having different days off when he said he was unemployed; and Mr Do states they mostly stay home, while Ms Bui states on her days off they go out to dinner or lunch with friends. Also undercutting the veracity of the 2017 declarations is the fact that, although Ms Bui says they are saving to take a trip to Vietnam to visit Mr Do’s parents as a honeymoon, she travelled overseas alone for one month in April and May 2019. She claims this was paid for by her sister, but for the reasons set out later in this decision the Tribunal rejects that explanation and finds that she paid for her trip overseas. Based on all these difficulties, and their lack of credibility generally, the Tribunal does not accept the evidence in Mr Do’s or Ms Bui’s 2017 declarations.
Based on its issues with the 2017 declarations, the conflicting evidence about the joint bank account, Ms Bui’s employment, and whether they have considered children, as well as their lack of credibility generally, the Tribunal does not accept the evidence in the 2018 declarations. In particular, the Tribunal does not find Ms Bui’s statement in her declaration that she and Mr Do are saving to purchase a property and travel together plausible because there is no evidence that they are saving any money together and she used savings to travel without him for a month in April and May 2019 (Ms Bui’s explanation is addressed below).
On the basis of their lack of credibility the Tribunal has doubts that Mr Do and Ms Bui met, formed their relationship, and married in the way set out in their 2013 relationship statements. The Tribunal notes with interest that the Buis have known Mr Do’s aunt for some considerable time and has taken this into consideration when deciding if the marriage is contrived and solely for the purpose of obtaining Mr Do permanent residency in Australia. The Tribunal is cognisant of the fact that a married relationship for migration purposes does not itself preclude Mr Do from meeting the definition of spouse in s.5F(2) Act. However, given all their credibility problems the Tribunal cannot take on face value anything from Mr Do or Ms Bui that does not have probative and reliable corroborative evidence. Therefore, on the basis of the complete lack of integrity or reliability in their evidence during the course of the application, it rejects the 2013 relationship statements.
There is nothing in the evidence the Buis gave at the hearing that actually undermines Mr Do’s claims that he and Ms Bui are in a genuine relationship. However, aspects of that evidence does bring into question the reliability of the more detailed elements of the information they provided in their declarations. In light of this, the Tribunal has put its mind to what weight it can give the Buis’ corroborative evidence, particularly in the context of its credibility finding on Mr Do and Ms Bui.
The Tribunal has found that Mr Do thoroughly lacks credibility and has misled the Tribunal with a large part of his evidence in support of his case. It has also found that Ms Bui is not a credible witness. It finds, therefore, that Mr Do’s credibility in particular has been so weakened that the well has been poisoned beyond redemption and it cannot be satisfied with any corroborating evidence about the relationship provided by Mr Bui, Mrs Tran, or Thi Van Bui in their declarations or at the hearing. While it has not viewed that evidence adversely, nor has it considered it as corroborative when making its decision on whether Mr Do is Ms Bui’s spouse. It gives no weight to that evidence. For the same reasons, the Tribunal has also given no weight to the declarations provided by Thong Hanh Simon Do and Huu Dat Do, Mr Do’s employer and best friend. It notes with interest that Ms Bui’s employer and two best friends did not provide declarations.
For the reasons set out below in the Tribunal’s findings about Ms Bui’s 2019 overseas trip, the Tribunal rejects Thi Van Bui’s 2019 declaration that she paid for that trip.
Whether Mr Do is Ms Bui’s Spouse
Clause 801.221(2)(c) of the Regulations requires that at the time of this decision, the applicant is the spouse of the sponsoring partner. ‘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 aspects of the relationship and the nature of their household, as well as the social aspects of the relationship and the nature of their commitment to each other: r.1.15A(3). Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered.[13]
[13] He v MIBP [2017] FCAFC 206.
The Tribunal accepts that Ms Bui is an Australian citizen who was specified in the application for Mr Do’s Subclass 820 (Partner) visa as Mr Do’s the spouse. Therefore, she is Mr Do’s sponsoring partner: cl.801.111 of the Regulations. The question for the Tribunal is whether Mr Do is the spouse of Ms Bui as defined in the Act.
Are Mr Do and Ms Bui Validly Married – s.5F(2)(a) of the Act
The Tribunal has viewed Mr Do’s and Ms Bui’s marriage certificate and finds that they were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a) of the Act.
Are Mr Do and Ms Bui in a Married Relationship – s.5F(2)(b), (c) and (d) of the Act
In determining whether Mr Do and Ms Bui are in a genuine and continuing relationship with a mutual commitment to a shared life as a married couple to the exclusion of all others and live together or do not live separately on a permanent basis, the Tribunal must consider each matter in r.1.15A(3)(a), (b), (c) and (d), as well as any other relevant circumstances of the relationship under r.1.15A(2) of the Regulations.
Financial Aspects of the Relationship
In considering the financial aspects of the relationship the Tribunal has looked at whether there is any joint ownership of assets or liabilities, the extent of any pooling of financial resources or sharing of day-to-day and household expenses, whether one party owes any obligations to a third party in respect of the other, and any other evidence that indicates that Mr Do and Ms Bui have a mutual commitment to a shared life as husband and wife that is genuine and continuing. As part of its considerations it has put its mind to all the evidence relating to the financial aspects of the relationship listed above and the relevant evidence set out in its credibility finding, including that put under s.359AA. Based on that credibility finding, together with its findings on the oral and written corroborative statements, it rejects or gives no weight to all the evidence relevant to r.1.15A(3)(a) except as referred to below. On that basis, the Tribunal makes the following findings on whether the financial aspects of their relationship support that Mr Do and Ms Bui are in a married relationship as defined in s.5F(2) of the Act.
The Tribunal accepts that since October 2018 Mr Do has worked at a dry cleaner. It does not accept that prior to that he did not work and his sole source of income came from Ms Bui’s job at the Berala Hotel.
The Tribunal finds that Mr Do and Ms Bui share no liabilities and do not have any obligations to a third party in respect of each other. Nor do they feel any obligation to share in or be responsible for each other’s debts or other liabilities. Ms Bui, who it is claimed was the sole source of income before October 2018, did not pay Mr Do’s debts or put sufficient funds in the joint account to cover Mr Do’s expenses, particularly his travel expenses. For instance, Mr Do said Ms Bui knew about the insurance company notice for the Honda and Ms Bui said she had seen a notice. But when asked why she did not pay the car insurance Mr Do changed his evidence to say she did not know and Ms Bui said it was his car and so his responsibility. Ms Bui also did not arrange for her salary to cover Mr Do’s tolls, Optus bill, or the repayments on the Honda (claiming she did not even know about the $17,000+ debt to St George). The Tribunal asked Mr Do why the financing for the Honda Accord was only in his name and not in both their names. He said it was because he was the driver of the car, however, he also claimed Ms Bui was the only one working. This is not the type of evidence that reflects that Mr Do and Ms Bui approach their finances as a married couple.
The only joint asset Mr Do could point to is their joint medical insurance. Mr Do claims that he and Ms Bui have medical insurance together and provided a BUPA membership certificate for couples cover starting on 15 August 2018 with premiums deducted from the joint account. However, there is no evidence that they had joint medical insurance prior to August 2018, including in the bank statements. Based on the Tribunal’s adverse credibility finding it does not accept that joint medical insurance taken out for the first time five years into the marriage is evidence that there is a financial aspect to their relationship. The Tribunal also notes that Ms Bui has not transferred money into the joint account to cover the BUPA direct debit even though there are regularly insufficient funds. This is even though she said she transfers money into the account as necessary and specifically cited BUPA as a day-to-day expense paid out of the joint account as evidence that she and Mr Do have mixed their funds. The Tribunal finds that Mr Do took out the coverage solely to support his claims. The Tribunal finds Mr Do and Ms Bui have no genuine joint ownership of assets or liabilities and Ms Bui feels no responsibility for the obligations Mr Do owes to third parties.
The Tribunal does not accept that the CBA account ending 9552 is used jointly by Mr Do and Ms Bui. For one thing there is only one card being used on the account, the card ending 7033. On 19 April 2018 the card used on the account changed to a card ending 7033, but there was still only one card. The Tribunal does not know who uses the account, although it suspects it is Mr Do alone. It has reviewed the statements it has and makes the following observations.
In 2014 large sums of cash were being deposited at Kingsgrove and the majority of the day-to-day expenses, like supermarkets and petrol, took place in Marrickville (where the Buis moved from around 2013 and a considerable distance from Condell Park, Berala, or Ultimo, but where Mr Do’s aunt lives). In 2015 large sums of cash were being deposited and withdrawn from around Broadway and Haymarket and day-to-day expenses like Woolworths, Aldi or Kmart were at Marrickville. In July 2015 day-to-day expenses appear to shift to Bankstown which is very close to Condell Park.
No bank statements were provided for the period from 24 July 2015 to 1 February 2017.
There is a claim that Ms Bui put reasonable amounts of money into the joint bank for their day-to day-expenses, but on 1 February 2017 there was $30.68 in the account. The only transactions on the account were cash deposits and Apple Itunes purchases with the card ending 7699 until 25 March 2017 where there is a toll charge. On 1 April 2017 the balance was 40¢. The only transactions from April to the end of July, other than two more Itunes charges, are cash deposits and withdrawals (in two cases in April through an online casino despite Mr Do telling the Tribunal he had no access to the account because of gambling). Between 29 July and 3 August 2017 there is a charge to an online clothing store, tobacconist, newsagent, BP, and a manchester store. There are no supermarkets or restaurants despite the Tribunal being told the account is used for food, insurance, and when they go out to eat which Ms Bui said they do on her day off.
In 2018 many of the transactions on the account are money migrating through the account, that is, money being transferred in or deposited and then on the same day withdrawn or transferred out. There are practically no transactions on the account after Mr Do started working in October 2018, except transfers, cash withdrawals, and the BUPA payments. The 2019 statements show some day-to-day withdrawals, mostly from Bankstown, and transport costs like Opal card topups and fines, but also large cash deposits followed by equally large cash withdrawals. There are also a large number of transfers to and from someone called ‘THI PHAM’ throughout the year.
There is not sufficient evidence in the statements to overcome the vast amount of adverse information supporting the finding that Mr Do has generally not told the Tribunal the truth. Nor is there any evidence in the statements provided that Ms Bui transferred money to the joint account as claimed. The Tribunal does not accept that the statements necessarily support that the account is used for any joint day-to-day expenses as claimed (although both Mr Do and Ms Bui backed away from that claim when the Tribunal requested the further bank statements). Based on its finding that Mr Do is not a truthful witness and there being insufficient reliable corroborative evidence to overcome that fact, the Tribunal does not accept that Mr Do and Ms Bui have pooled their finances in any way or share their day-to-day and household expenses.
Having considered all the evidence, separately and together, and each of the specific matters contained in r.1.15A(3)(a), for the reasons set out the Tribunal finds that the evidence is so lacking in credibility that it cannot be satisfied that there is any financial aspect to Mr Do’s and Ms Bui’s relationship. The small amount of independent corroborative evidence available is insufficient to satisfy the Tribunal that it supports that they are in a genuine married relationship.
Nature of the Household
The Tribunal’s consideration of the nature of Mr Do’s and Ms Bui’s household has included the parties’ living arrangements, the organisation of household duties, any joint responsibility for care and support of children or aged relatives, and any other aspects of their household that is relevant to whether they are in a married relationship. As part of its considerations it has put its mind to all the evidence relating to the nature of their household listed above and the relevant evidence set out in its credibility finding, including that put under s.359AA. Based on that credibility finding, together with its findings on the oral and written corroborative statements, it rejects or gives no weight to all the evidence relevant to r.1.15A(3)(b) except as referred to below. On that basis, the Tribunal makes the following findings on whether the nature of their household supports that Mr Do and Ms Bui are in a married relationship as defined in s.5F(2) of the Act.
Mr Do provided documentation addressed to him at the Condell Park address and the Tribunal accepts that it is his current residence. It is less convinced that he moved in with the Buis in 2013, and not closer to 2015 when the majority of the household expenses on the joint account bank card moved from Marrickville to Bankstown. While there is little evidence that Ms Bui currently lives at the Condell Park address, because it is her parents’ home the Tribunal is willing to accept that she resides there. The Tribunal notes that there is an insurance account from AAMI dated 10 April 2014 addressed to Mr Do for fire and theft contents insurance for the property at [address] being occupied as a tenant. This does not strike the Tribunal as the type of thing that a family member would feel the need to take out. A family member would more naturally come within his in-laws home and contents insurance. It is also unclear why the insurance is not in Ms Bui’s name as well.
The evidence provided by Mr Do and Ms Bui about their knowledge of each other’s day-to-day lives was limited and inconsistent. For instance, Ms Bui told the Tribunal that one of the shifts she works most often is 5pm to 1am and they said Mr Do gets home from work at 2pm, yet neither included in their description of their day what they do from 2pm to 4:30pm when they are presumably regularly at home together. This is despite telling the Tribunal that because of Ms Bui’s schedule they do not have that much time together.
That Mr Do and Ms Bui have a family plan has appeared in many of the submissions. It includes saving money, moving out of Ms Bui’s parents’ house, traveling, buying property, and having children. The Tribunal accepts the medical evidence provided that Ms Bui is healthy and can have children. In 2018 she claimed they plan to have two children, a son first and then a daughter, ‘as soon as possible’ because they are young. Although it does not draw any adverse inference, the Tribunal does note that at the time of this decision there is no evidence they have had that child. In fact, at the hearing there was no indication, despite handing up her medical records, they were trying to have a child and there was no mention in the response to the request for additional information dated 22 November 2019 that they have or are trying to have a child. It does view adversely the fact that, even though financial constraints were identified as a reason why they have no children, Ms Bui spent money to go overseas for a month alone in April and May 2019 (Ms Bui’s explanation is dealt with below). This is inconsistent with the family plan. In fact, there is no evidence before the Tribunal to indicate that the family plan has progressed at all since 2013. For instance, while Ms Bui told the Tribunal that money left over at the end of the week is being saved in the joint account, the statements show there has never been any money saved into that account. Rather, it regularly has insufficient funds.
The Tribunal has considered all the evidence, separately and together, and each of the specific matters contained in r.1.15A(3)(b), and finds that the complete lack of reliable evidence about the nature of their household means that it is not satisfied that Mr Do and Ms Bui have established a joint household as a married couple. It accepts that they both live in Ms Bui’s parents’ house, Mr Do as a tenant, but they do not live together as husband and wife. What little evidence the Tribunal can accept given its credibility finding does not support that Mr Do and Ms Bui are in a genuine married relationship as defined in the Act.
Social Aspects of the Relationship
Social aspects of the parties’ relationship considered by the Tribunal are whether Mr Do and Ms Bui represent themselves to other people as being married to each other, the opinions of friends and acquaintances about the nature of their relationship, any joint social activities, and generally anything that indicates that their social interactions support that they are in a married relationship. As part of its considerations it has put its mind to all the evidence relating to the social aspects of the relationship listed above and the relevant evidence set out in its credibility finding, including that put under s.359AA. Based on that credibility finding, and in particular its findings on the oral and written corroborative statements, it rejects or gives no weight to all the evidence relevant to r.1.15A(3)(c) except as referred to below. On that basis, the Tribunal makes the following findings on whether the social aspects of their relationship supports that Mr Do and Ms Bui are in a married relationship.
The Tribunal accepts that after living with the Buis for a number of years, Mr Bui and Mrs Tran have grown very fond of Mr Do, particularly since he is the nephew of a longstanding family friend. It also accepts that Mr Do and Ms Bui are friends who occasionally socialise together. Even though there are irregularities in the bank account surrounding the trip to Queensland in 2015, the Tribunal is willing to give Mr Do the benefit of the doubt and accept that both he and Ms Bui went to the Gold Coast for Easter that year and even that they were genuinely on that trip together. However, based on its credibility finding and that there is no independent evidence that they were there as a couple (e.g. receipts from a hotel for a double occupancy double bed room, etc.), the Tribunal finds they were there as friends not husband and wife.
The Tribunal viewed adversely the fact that Mr Do was unable to tell it whether or not Ms Bui went to an expensive concert with her friends in 2017. The Tribunal accepts that it is not unreasonable that Ms Bui did not tell Mr Do she had purchased Adele tickets because they were not for her use. But they claimed they were saving to move out and travel to meet Mr Do’s parents. If they were in a genuine married relationship, Mr Do should have been able to tell the Tribunal whether or not Ms Bui had bought expensive concert tickets to use herself and would have been sufficiently aware of her social life to know whether she had gone to the concert or not. But Mr Do told the Tribunal that he did not know one way or the other.
Other than the wedding photos, Mr Do submitted 40 photographs of just himself and Ms Bui clearly taken on a mobile phone. Yet they both told the Tribunal they had no pictures on their mobile phones. Of the photographs with friends and family, Mr Do submitted one photo of himself and Ms Bui with Ms Bui’s older brother and wife, one photo of himself and Ms Bui with Ms Bui’s sister, one photo of Mr Do and Ms Bui with Ms Bui’s parents, and eight photos with family and friends taken on four different occasions. The Tribunal put to Mr Do that there were comparatively few pictures of him and Ms Bui with friends. For the reasons set out above in its credibility finding, and based on his lack of credibility, the Tribunal rejects his response that he and Ms Bui have mutual friends, but he does not like to take photos. He also said they are not on Facebook or other social media. Ms Bui has an Instagram account, but she only uses it to watch videos and memes. The Tribunal accepts that the photos it does have support that there are social aspects to their relationship. But based on Mr Do’s and Ms Bui’s overall lack of credibility it rejects that the only reason there are so few of them socialising together is Mr Do’s aversion to photos or any of the other inconsistent reasons given about missing mobile phone photos. It finds it is because, while they may be friends, except with Ms Bui’s family, they do not socialise together often enough, or in a way, that lends itself to selfies with mutual, or each other’s, friends.
The Tribunal acknowledges that Mr Do was able to say that Ms Bui’s best friends are Brooke and Vanessa and Ms Bui was able to say that Mr Do’s best friend is Dat. The Tribunal has considered that this supports that there are social aspects to their relationship, but does not believe that it is sufficient to overcome its other problems with their evidence. It has addressed Huu Dat Do’s declaration above. It has taken into consideration that neither Brooke nor Vanessa provided statements in support of Ms Bui’s relationship with Mr Do. This strikes the Tribunal as unusual. In fact, none of the friends in the pictures provided to show that they hold themselves out to be a married couple made statements in support of that fact or the relationship.
The Tribunal has considered the fact that in April and May 2019 Ms Bui travelled overseas for a month without Mr Do. This was rather than saving money so they could move to a place of their own, going on holiday together in Australia, or waiting until Mr Do could accompany her overseas. It does not consider that this is the action of the wife in the relationship described in Mr Do’s evidence to the Tribunal. Without a reasonable explanation, it does not consider that it is the actions of any person with a mutual commitment to live together as husband and wife. Ms Bui’s explanation, which the Tribunal does not accept, is addressed below.
Having considered all the evidence, separately and together, and each of the specific matters contained in r.1.15A(3)(c), the Tribunal finds that there is some support for there being a social aspect to Mr Do’s and Ms Bui’s relationship. However, it is far from definitive that those social interactions are as husband and wife. The extent to which the evidence and photos support Mr Do’s claims must be balanced against the concerns about his credibility generally. So while there is some evidence that the social aspects of their relationship supports that Mr Do and Ms Bui are in a genuine married relationship, it is not much, it is not strong, and it does not overcome the Tribunal’s finding that Mr Do’s truthfulness as a witness is so undermined that his claims and evidence about his marriage are not to be believed. On that basis, the Tribunal finds that what reliable evidence there is of social aspects to the relationship shows Mr Do and Ms Bui are friends.
Nature of the Parties’ Commitment to Each Other
When considering the nature of Mr Do’s and Ms Bui’s commitment to each other the Tribunal has taken into account the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other, whether they see the relationship as long-term, and anything that would indicate that they have a mutual commitment to a shared life as husband and wife that is genuine and continuing. As part of its considerations it has put its mind to all the evidence relating to the nature of their commitment listed above and the relevant evidence set out in its credibility finding, including that put under s.359AA. Based on that credibility finding, together with its findings on the oral and written corroborative statements, it rejects or gives no weight to all the evidence relevant to r.1.15A(3)(d) except as referred to below. On that basis, the Tribunal makes the following findings on whether the nature of their commitment to each other supports that Mr Do and Ms Bui are in a married relationship as defined in the Act.
Mr Do did not know enough about Ms Bui’s life to know when she had completed her TAFE course even though she attended TAFE fulltime a considerable distance from home for the majority of their marriage. Mr Do also did not know what Ms Bui was studying. A mere acquaintance, even a friend, may not distinguish between a hospitality course and events management. But a couple with a genuine commitment would surely have had many discussions over the first five years of their marriage about the details of a fulltime occupational course that presumably Ms Bui intended to utilise in her future employment.
100. The Tribunal asked for an example of a time when Ms Bui had supported Mr Do. Mr Do told the Tribunal that Ms Bui has encouraged him to be patient and look for a job because without money they cannot look forward to the future. He said she is never upset. As an example of when he had supported her, he said when she came back from work looking tired he told her to be patient and try to keep up. The Tribunal acknowledges this is some evidence of a commitment to each other.
101. Money generally and their lack of financial security featured heavily in the evidence presented by Mr Do and his witnesses. Their employment prospects and future earnings, savings, financial stability, and current need for money were common themes to explain why they still live with Ms Bui’s parents, have not yet had children despite wanting them, and have not travelled back to Vietnam to see Mr Do’s parents. In fact, their lack of ‘financial stability’ was given as the reason for all the lack of movement on the family plan for their future that they continually claimed they have made. Within this context, the Tribunal has viewed adversely the fact that Ms Bui spent a large sum of money to go on a one month overseas vacation without Mr Do. Airline tickets alone were $1,439.61. Also, this money was spent at a time when Ms Bui had quit her job. Mr Do claims that Ms Bui’s sister gave Ms Bui the trip for helping with her wedding. For the reasons below the Tribunal rejects that explanation. It finds that Ms Bui went on an extensive holiday without Mr Do instead of using that money to work towards their claimed family goals or spend time with Mr Do which they claim had not previously been allowed for by her work/school schedule. This is not behaviour that supports that they have a mutual commitment.
102. The Tribunal has considered the length of their marriage, that they have been living together at the same address (although it is not entirely sure for how long), that Mr Bui and Mrs Tran say they consider Mr Do part of the family, and that they have mutual friends. It has considered all the evidence, separately and together, and each of the specific matters contained in r.1.15A(3)(d), however, there is no persuasive evidence that Mr Do and Ms Bui are committed to each other as a married couple. The probative and reliable evidence of their commitment to each other, such as it is, does not sufficiently support that Mr Do and Ms Bui have the sort of relationship contemplated in s.5F(2)(b) or (c) of the Act.
Other Relevant Circumstances of the Relationship
103. On 26 April 2019, Ms Bui left Australia and flew to Tokyo. Then on 9 May 2019 she went from Tokyo to Seoul. She returned to Australia on 25 May 2019. Mr Do did not accompany Ms Bui on this overseas trip. The Tribunal has found this relevant to a number of its considerations above.
104. The Tribunal put to Mr Do under s.359A that Ms Bui’s travel overseas for a month alone did not appear consistent with their claims about their limited funds as a family, that they were saving money to travel overseas together to see Mr Do’s family, or to have a family plan that included becoming financially stable enough to move out of the Buis and have children. It put Mr Do on notice that it did not think this was an action that supported that he and Ms Bui were in a genuine and continuing married relationship. In response Mr Do submitted three statutory declarations dated 5 December 2019, one each from himself, Ms Bui, and Thi Van Bui. The 2019 declarations state that Thi Van Bui gave the trip to Ms Bui as a gift for the work she did in preparation for Thi Van Bui’s wedding. Photographs of Ms Bui and Thi Van Bui in Japan were also forwarded to the Tribunal. Mr Do and Ms Bui both claimed that Mr Do had to stay in Australia and work. Ms Bui stated that there were insufficient funds to pay for Mr Do’s travel and accommodation. Thi Van Bui stated that the trip had been paid for by credit card and on PayPal.
105. Provided to the Tribunal was a Qantas e-ticket, itinerary, and receipt in Ms Bui’s name stating that the ticket was issued and paid for on 17 February 2019. The ticket cost was $1,439.61 and it was paid for with a Visa card ending 5587. As noted above, Ms Bui’s personal CBA bank statements are well notated. On 28 February 2019, there was a transfer for $1,000 from Ms Bui’s account to a CBA account using her CommBank app. That transfer has the notation ‘Tickets’. Although it is an excessive amount for, say, concert tickets or the like, the Tribunal did not considered that it might be connected to Ms Bui’s overseas trip until it came across a second transfer on 4 March 2019. The second transfer to a CBA account with the notation ‘Tickets’ was for $440, making a total of 39¢ more than the $1,439.61 paid for the airline tickets to Japan and South Korea.
106. The Tribunal does not find it plausible that payments equalling $1,440 with the notation ‘Tickets’ do not relate to a rounded up amount for Ms Bui’s overseas flights. When the Tribunal considers Mr Do’s complete lack of credibility and the number of other occasions on which Ms Bui has failed to tell the Tribunal the truth, it finds that once again they have been untruthful in their 2019 statutory declarations. It finds that the transfers marked ‘Tickets’ coming out of Ms Bui’s account after the purchase of the airline tickets and before she went overseas were repayments to whoever bought the tickets on his or her credit card. Based on the evidence in her CBA statement and the Tribunal’s credibility finding above, it finds that Ms Bui did pay for her 2019 trip to Japan and South Korea. It was not a gift from her sister. For the reasons given where relevant above, the Tribunal finds that this undermines Mr Do’s claim that he is in a married relationship with Ms Bui.
107. The Tribunal also has taken into account that Thi Van Bui made a statutory declaration telling the same story, that she gifted the overseas trip to Ms Bui. Since the Tribunal has rejected this story on the independent evidence found in Ms Bui’s CBA statement and her and Mr Do’s overwhelming lack of credibility generally, it finds that Thi Van Bui’s 2019 declaration is not true.
Findings and Reasons
108. The Tribunal is not satisfied that Mr Do and Ms Bui are in a married relationship. After considering all the evidence, it finds that any reliable information that may appear to support his case does not overcome the fact that he is not a credible witness and his evidence has not been truthful. The Tribunal does not accept that Mr Do and Ms Bui have a mutual commitment to a shared life together to the exclusion of all others. Although it accepts that they live together, and may even be friends, it does not believe that their married relationship is, or ever has been, genuine or continuing. Therefore, the Tribunal finds that the requirements of s.5F(2) are not met at the time of this decision.
109. Since Mr Do and Ms Bui are not in a married relationship, Mr Do does not meet the definition of spouse in s.5F of the Act. Given these findings, he is not the spouse of the sponsoring partner and so does not meet cl.801.221(2)(c) of the Regulations.
110. Furthermore, Mr Do has not claimed, and there is no evidence before the Tribunal to support, that Mr Do meets the alternative criteria in cl.801.221(2A), (3), (4), (5) or (6).
111. For the reasons above, Mr Do does not satisfy the criteria for the grant of the visa.
DECISION
112. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.
Mireya Hyland
MemberATTACHMENT - 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).
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