Do (Migration) - [2020] AATA 127

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 affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cl 801.221
CASES
Dranichnikov v MIMA [2003] HCA 26
Any 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] AATA 127
Decision Date: 6 January 2020

CaseChat Overview and Summary

This matter concerned an application for a Partner (Residence) (Class BS) visa, Subclass 801 (Partner). The applicant, Mr Do, claimed to be the spouse of Ms Bui. The delegate of the Minister affirmed the decision under review, finding that Mr Do's claim to be the spouse of Ms Bui was not credible. The Tribunal was required to determine whether the delegate's decision should be affirmed.

The legal issues before the Tribunal were whether the relationship between Mr Do and Ms Bui was genuine and whether Mr Do had been truthful in his evidence to the Tribunal. This involved assessing the credibility of the statements and declarations provided by Mr Do, Ms Bui, and their respective families, as well as considering documentary evidence relating to their financial arrangements, household circumstances, employment history, and social interactions.

The Tribunal found significant inconsistencies and a lack of credibility in the evidence presented. It rejected the 2013 relationship statements, the 2017 and 2018 declarations from Mr Do and Ms Bui, and gave no weight to the declarations from Ms Bui's family. Specific concerns included conflicting accounts regarding discussions about children, differing descriptions of their leisure activities, and implausible explanations for Ms Bui's solo overseas travel. The Tribunal also noted inconsistencies between Mr Do's claims about Ms Bui's employment and study, and his assertion that Ms Bui was never upset, which contrasted with other evidence. The Tribunal concluded that Mr Do had not been truthful and had attempted to mislead the Tribunal.

Consequently, the Tribunal affirmed the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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).

Ratio Decidendi

Legal Principle Established

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