Doan (Migration)

[2019] AATA 6352

Doan (Migration) [2019] AATA 6352 (22 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Minh Duc Doan

CASE NUMBER:  1713816

HOME AFFAIRS REFERENCE(S):           BCC2016/1635534

MEMBER:James Lambie

DATE:22 November 2019

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

Statement made on 22 November 2019 at 4:34pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) – Subclass 820 (Spouse) – not genuine relationship – limited evidence of shared financial commitments – lack of knowledge of household and family matters – sponsor continues to own house with former husband –
contradictory information – witnesses demonstrated limited personal knowledge of couple
– decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65
Migration Regulations 1994 (Cth), Schedule 2, cls 820.211, 820.221

CASES
He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 4 May 2016 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(a) because the evidence was insufficient to demonstrate that the applicant was the spouse or de facto partner of the sponsor within the definition of sections 5F and 5CB of the Migration Act.

4. The applicant appeared before the Tribunal on 14 June and 21 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from  Hong Thu Nguyen, who is the applicant's Partner, Quyen Dan Nguyen and Thi Kim Hue Doan. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

6. A large quantity of material was supplied to the delegate and is comprehensively listed in that decision. It included bank accounts of the applicant and sponsor and a joint account, motor vehicle insurance documents, motor vehicle registration documents, telephone accounts, government correspondence, pharmaceutical prescriptions, a variety of invoices and promotional material addressed to the applicant at the parties’ address at 12 Tollana Place, Inala, photographs, form 888 statutory declarations, tax returns, their marriage certificate, travel documents and superannuation statements. For the Tribunal hearing, the parties provided additional photographs, telephone accounts, bank statements, travel documents and statutory declarations.  I have had regard to all of this material. A quantity of it will be referred to further below. In addition, the applicant’s representative provided further information and documents under cover of letters dated 20 August 2018 and 31 August 2018. On 24 June 2019, the Tribunal requested current bank account statements for all accounts held by the parties, telephone records and specific information concerning some of the travel undertaken by the parties. The response was provided on 15 July 2019.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether Mr Doan and Ms Nguyen are in a spouse or de facto relationship within the meaning of the legislation.

   Whether the parties are in a spouse or de facto relationship

9. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.

10. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

11. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.  The parties submitted a Queensland marriage certificate recording a marriage between the parties at Darra on 24 October 2015.  On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

    Are the other requirements for a spouse relationship met?

12. The applicant arrived in Australia in July 2013, aged 21, on a student visa. He did not complete his studies. He met the sponsor on 10 August 2014, the sponsor having been divorced in April of that year. They say they were engaged to be married on 10 August 2015 and married on 24 October of the same year.

    Financial aspects of the relationship

13. In considering the financial aspects of the relationship, I have had regard to the joint ownership of assets, joint liabilities, the extent of pooling of financial resources, any legal obligations owed by one party to the other, and any sharing of day-to-day household expenses.

14. Among the evidence produced by the parties as to the joint ownership of assets, I have had regard and given weight to their superannuation statements listing each other as beneficiaries, the statements for their joint account (Commonwealth Bank xx5186), and the motor vehicle insurance and registration documents indicating their joint ownership of two cars. However, the sponsor continues to own her house jointly with her former husband, Mr Tam Thanh Hoai Dinh.  The sponsor’s evidence is that she and her former husband negotiated a property settlement under which it was agreed that he would transfer the house to her and that she would pay him the sum of $70,000 over a period of time. A signed but unexecuted document purporting to evidence this agreement was produced to the Tribunal. The sponsor acknowledges that the transfer was never completed. She says that the transfer was not accepted by the bank because she had no job at the time and, accordingly the bank would not accept her as the sole mortgagor.

15. The sponsor’s evidence in relation to the ownership of the house was generally unsatisfactory. In particular, the provenance of the money applied to the mortgage which, she says (despite the attitude of the bank) is her sole responsibility, is impossible to ascertain. The loan is serviced by way of monthly $800 cash deposits into an ATM at Mount Ommaney Shopping Centre. No satisfactory explanation was offered as to why this rather labour-intensive method might be preferred over direct bank transfers. No explanation was offered as to why the ATM at Mount Ommaney might be used when the parties do the rest of their banking and shopping in Inala (some 9km away).  Their representative submitted that the cash deposits are derived from the sponsors cash wages as well as cash withdrawn from the joint account. It is difficult to see where in the statements the corresponding cash withdrawals are referrable to the mortgage payments. 

16. Bank accounts, utility accounts and vehicle registration and insurance are simple to establish in joint names, and to dissolve.  Interests in land are a different matter.  Given that no documentary evidence was provided as to the bank’s supposed opposition to the transfer, and the extremely opaque nature of the means of servicing the mortgage, I do not accept the sponsor’s evidence on this subject.  I give that the sponsor’s continued joint ownership of the property with her former husband much more weight than the other material submitted as to visa applicant and sponsor’s purported joint ownership of assets. 

17. The parties provided no evidence as to joint ownership of any other assets.

18. The parties provided no evidence of any joint liabilities.  There is no evidence of legally binding financial obligations between them.

19. I have very carefully considered all of the bank account details provided to me. In general, the joint transaction account contains evidence that it is used for the receipt of wages and the payment of day-to-day expenses. The sponsor’s personal account (Commonwealth Bank xx4087) is also used for day-to-day household expenses, although less actively. There is nothing unusual in a couple having separate bank accounts and I attach no particular weight to the sponsor keeping and using this account. However, what weight I might attach to the evidence in the joint account statement must be reduced by the very significant use of cash, the sources of which and the uses to which it is put were not adequately explained. The sponsor claimed that the largest of the cash deposits ($22,000) that show up in the account statements represents a loan from a friend used partially to pay for the purported property settlement. There is nothing in the nature of evidence to corroborate this, not even a statement from the friend (or friends) and no explanation as to why such very large cash transactions were necessary when, for example, transfers into and out of bank accounts would have served the purpose and provided evidence of payment in the event of a dispute. Needless to say, no receipt or any other acknowledgement of payment from the ex-husband was produced.  The sponsor acknowledged that no such material exists.

20. Accordingly, it is impossible on the evidence presented by the parties to be satisfied that anything like the parties’ full financial picture has been presented.  What has been presented provides some evidence that household expenses and bills have been paid from the joint account but, in view of the very significant movement of funds with no clear provenance, I can give that material only equivocal weight.

21. On 8 July 2019, the party’s representative included with her submission some material relating to the establishment and operation of a bakery by the parties jointly. The bakery appears to have opened in about August 2018 and closed on or about 28 June 2019.  There are no details other than the bakery’s transaction account and a management agreement dated 7 July 2018 with the parties named as joint manager of the premises. I have had regard to this material but there is little in the way of detail to allow the drawing of conclusions as to the financial relationship between the parties.  For example, it is not possible to determine from the parties’ or the bakery’s bank accounts who paid the bakery’s security deposit, or if it was made at all.  By far the largest transactions are either not described or constitute transfers to a gambling app.  Only one transfer can be positively identified as rent.

22. Considering the evidence overall, I cannot be satisfied that the parties have genuinely integrated their financial affairs.

    The nature of the household

23. In assessing the nature of the household, I have considered any joint responsibility for the care and support of children, the parties living arrangements and any sharing of housework.

24. The sponsor has two children from her previous marriage, a son and a daughter. The son, at the time of the hearings, had left home and joined the army. The applicant demonstrated only limited knowledge of the son’s army career: he was not aware of his unit or specific occupation. He did not attend his passing out parade. At the hearing, the applicant’s knowledge of the daughter was extremely vague.  He provided incorrect details as to her age. He was unable to provide any details about her friends and only the most generic details as to her interests. When asked about her favourite subject, he nominated mathematics and literature. The sponsor’s evidence was exactly the same, despite the fact that “literature” is not offered as a subject at year 10. I consider this detail to have been concocted between the parties. The applicant’s evidence that the daughter had few friends and did not go out much was contradicted by the sponsor. His assessment of her school grades as average or below was contradicted by the sponsor. He has never sighted a report card.

25. The applicant’s evidence as to the parties’ day-to-day routine and the sponsor’s interests did not indicate that they spend a great deal of time together. The applicant’s evidence as to the sponsor’s routine (that she is picked up by a friend between 6 and 7am and is returned between 1 and 2pm) was contradicted by the sponsor, whose evidence was that she drives her daughter to school and is picked up at 9, returning at about midday. 

26. The evidence of both parties is that the sponsor does most of the housework.

27. In view of the applicant’s apparent lack of familiarity with basic household and family matters, I cannot be satisfied that the nature of the household is consistent with the existence of a genuine relationship.

    Social aspects of the relationship

28. In assessing the social aspects of the relationship, I have considered whether the parties represent themselves to other people as being married to each other, the opinion of friends and acquaintances about the nature of the relationship, and any basis on which the person to plan and undertake joint social activities.

29. I am satisfied that the parties have represented themselves to others as being married to each other, having regard to the photographs of the wedding ceremony and the statutory declarations and statements provided to the tribunal.

30. The tribunal took evidence from Quyen Dan Nguyen and Thi Kim Hue Doan.  Ms Nguyen described herself as a close friend of the sponsor.  She attended the wedding.  She was unable to identify the bridesmaid.  She offered very few details of the couple.

31. Ms Doan described herself as a friend of the applicant.  She said that she sometimes has them over for a barbecue and occasionally visits them.  She offered vague details about the sponsor’s children.  She had no idea of the name of the couple’s dog.

32. Given that these witnesses demonstrated limited personal knowledge of the couple, I find it surprising they were nominated by the parties to give evidence on their behalf.

33. The statutory declarations tendered in support of this aspect of the inquiry tended to provide a consistent narrative of the development of the relationship over the objections of the applicant’s parents and the sponsor’s children.  None provide any particular insight into the couple as a couple, or any details about time spent socialising with friends and relations.  The photographs, of which there are many, consist of ‘selfies’ or posed groups.  With a few exceptions, they are not captioned.  I give them some weight where the couple are shown together in a social setting, but there is limited insight to be drawn from them.

34. As evidence that the parties plan and undertake joint social activities, I was taken to material showing a trip they made to Vietnam, a trip to Sydney and an overnight stay on the Gold Coast.  I have also had regard to some photographs of birthday celebrations, although the ‘social’ nature of these events is difficult to determine.  I allow that this material indicates that the parties have undertaken travel together, and have photographic records of that fact.  However, given the purported length of the relationship, the evidence of the social aspects overall is very thin.  It would be expected that there should be a wealth of material attesting to a marriage accepted by the parties’ friends and relations:  invitations, text messages, greeting cards and the like, which tends to accumulate over the years, particularly when they are made electronically.  Nothing of this nature was produced.

    The nature of the parties’ commitment to each other

35. In assessing the nature of the parties’ commitment to each other, I have considered 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, and whether they see the relationship as long-term.

36. At paragraph 32, I alluded to the fact that the parties and their witnesses tended to focus on the historical narrative of the relationship. The narrative is fairly consistent and I apply some weight to it as evidence of the inception and development of the relationship. I also accord some weight to the length of time they claim to have lived together, there being no evidence that they have lived in separate residences since 2015.

37. As to the degree of companionship and emotional support they draw from each other, I heard from the parties and their witnesses and I have also had regard to the submissions made by their representative in terms of objective evidence, I take the view that the truth in such matters is often to be found in the quotidian details. It is a simple matter to hold an event and take some photographs, or to provide copies of love letters. Relationships, and the evidence of companionship and emotional support, are typically made up of multiple tiny events such as partners running errands for each other, checking on the need to pick up household items, or making queries after the health of a mutual friend. That is why I made a particular request for the provision of telephone records. The parties’ representative did not provide the records requested of the sponsor. Her records, supplied prior to the hearing, comprised only the period 27 September 2017 to 26 March 2018. These records indicate that they spoke on the phone on 13 occasions over six months. The more up-to-date records not being supplied, I infer that they would be no more helpful.

38. Telephone records for the applicant were supplied covering the period 13 June 2018 to 12 June 2019. For the months of October and November 2018 and January, February, March and April 2019, he made no calls at all to the sponsor.  I consider this inconsistent with the existence of a genuine relationship.

39. The parties claim to see the relationship as long-term: however, there is very little in the way of corroborative material and, in view of the paucity of positive evidence and the abundance of negative evidence as to the existence of a marital relationship overall, I am disinclined to accept that claim.

    .

40. Having regard to all of the material referred to above, I cannot be satisfied that the parties have a mutual commitment to a shared life to the exclusion of others, that theirs is a genuine and continuing relationship, or that they intend to live together on a permanent basis.

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

42. Therefore the applicant does not meet cl.820.211(2)(a). The alternative criteria in cl.820.211(7), 820.211(8), 820.211(9) and 820.221(2) are not applicable.

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

2. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

   James Lambie
   Senior Member

   
   

   ATTACHMENT - 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).