DOAN (Migration)

DOAN (Migration) [2019] AATA 3650 (3 June 2019)
CORRIGENDUM
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Van Gioi DOAN
VISA APPLICANT:  Ms Thi Kim Oanh Nguyen
CASE NUMBER:  1826028
DIBP REFERENCE(S):
MEMBER:David Barker
DATE OF DECISION:  3 June 2019
DATE CORRIGENDUM
SIGNED:28 August 2019
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:

The words: ‘Date: 3 June 2016’ should be replaced with ‘Date: 3 June 2019’.
David Barker
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Van Gioi DOAN
VISA APPLICANT:  Ms Thi Kim Oanh Nguyen
CASE NUMBER:  1826028
DIBP REFERENCE(S):  BCC2017/2391884
MEMBER:David Barker
DATE:3 June 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.
Statement made on 03 June 2019 at 9:18am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – not in genuine and continuing spousal relationship – discrepancies and inconsistencies in evidence – unreliable information – not credible witnesses – little evidence relationship is seen as long-term – parties collaborated to provide applicant pathway to achieving permanent residency in Australia – fourth application for partner visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65, 359A
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 309.211, 309.221

CASES
He v MIBP [2017] FCAFC 206
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 2 August 2018 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 5 July 2017 on the basis of her relationship with her sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional)). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because they were not satisfied on the evidence that the parties were in a genuine and continuing spousal relationship.
The review applicant appeared before the Tribunal on 26 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, by telephone from Vietnam.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The visa applicant is a national of Vietnam, born in June 1962. She was previously married, from 1980 until August 2006. She claims she separated from her previous husband in 1992, but then remained living under the same roof until January 2007. There were two children from that relationship, sons, born 1983 and 1987.
The review applicant was born in Vietnam in April 1962. He came to Australia in 1988 and was granted Australian citizenship in 1993. He was previously married from June 1990 to October 2007. He has five children from his first marriage, born in 1988,1991,1993,1996 and 1997.
The visa applicant first travelled to Australia as a holder of a Visitor visa, to visit her brother, in December 2005. The parties claim that they first met each other in December 2005 when the visa applicant was visiting her brother’s family at their farm near Adelaide and the review applicant was working on her brother’s farm. The visa applicant again travelled to Australia on a Visitor visa in March 2006. The parties claim that a relationship developed from that time, mostly through communication by phone and electronic means but with the review applicant also visiting Vietnam. They were married in Vietnam in May 2008.
This is the fourth application by the visa applicant for a Subclass 309 Partner visa. She made the first application in July 2008 and that application was refused. The applicant did not seek review of that decision but instead made a fresh application for the Partner visa in April 2009. That application was unsuccessful and the parties sought review by the Migration Review Tribunal (MRT). The MRT affirmed the delegate’s decision. The third application was made in June 2012 and that application was again unsuccessful. The parties sought a review of that decision by the MRT and the MRT (differently constituted) affirmed the delegate’s decision.
The review and visa applicants provided documents to the Department of Immigration in support of the current application including but not limited to the following: documents regarding their identities and marital status, communication records, financial records, travel records, copies of personal correspondence and other correspondence, the parties’ marriage certificate, statements by the review and visa applicants, statutory declarations by friends of the parties and photographs.
In the delegate’s decision record, a copy of which the review applicant provided to the Tribunal, the delegate was not satisfied with the evidence given by both parties in regard to their marital relationship. In summarising these concerns the delegate stated:
On the basis of the evidence before me, I cannot be satisfied that the parties communicate with, and draw a degree of emotional support from one another, as could be expected by people who are in a genuine relationship.
The applicant provided evidence that she has close relatives permanently living in Australia. The applicant claimed that the sponsor previously worked in the farm of the applicant's brother. I find that the applicant has a strong incentive to attempt to migrate to Australia to be reunited with these close relatives. I am not satisfied that the applicant has applied for this partner visa based on a genuine relationship with the sponsor and find that the circumstances indicate it may be being used as a pathway to be granted a visa in order to be reunited with relatives.
The sponsor did not return to Vietnam to see the applicant in 2014 and 2015. This period of separation is about two years. I note there is very limited evidence of contact between the applicant and sponsor In this period. I also note that the applicant did not have knowledge of the sponsor's work during this period. During the phone interview, the applicant was unable to provide a reasonable explanation as to why the sponsor did not visit the applicant for this length of time, stating that the sponsor was busy with work and was waiting for the outcome of the applicant's migration application. These significant gaps between visits and of person-to-person contact between the parties are of significant concern.
While I am satisfied that the applicant and the sponsor have legally married, and whilst the applicant displayed some knowledge of the sponsor at interview, there is little evidence that this relationship is seen as a long-term one by the applicant or sponsor. The seemingly rapid development of the relationship from initial meeting to the marriage raises concerns, as does the gaps in the applicant's knowledge of the sponsor, the nature of the applicant's divorce, the nature of the sponsor's divorce. I have had regard the fact that the sponsor did not visit the applicant for two years 2014 and 2015.1 have had regard the fact that the applicant and sponsor have very limited evidence of contact in 2013, 2014 and 2015. These circumstances do not support their claims that they are in a genuine and continuing spousal relationship.
Prior to the hearing the review applicant provided documents to the Tribunal including, but not limited to: untranslated copies of text, social media and Skype communication, phone records, photographs, written statements, contracts of authorization, applications for verification of temporary stay, written statements from the review applicant, statutory declarations from friends, and financial records.
At the start of the hearing the applicant provided the Tribunal a sheet of photos of him and the visa applicant. He also produced a USB thumb drive, which the Tribunal indicated it would not accept due to uncertainty about the contents of such a piece of technology. The Tribunal told the review applicant that he was welcome to print off any documents or other evidence which may be on the thumb drive, which he considered were in support of the parties’ claims and that the Tribunal would allow him time following the hearing to provide any such further evidence.
TRIBUNAL HEARING
Review applicant’s evidence
In response to a question from the Tribunal regarding a written statement the review applicant provided the Department with the visa application, in which he claimed he gave the visa applicant two houses worth millions of Vietnam Dong (VND), he withdrew this claim and said he did not own two houses and said that the situation was that every time the visa applicant sold a house and bought a new house he had to travel back and forth to Vietnam to co-authorise those transactions because they are husband and wife. He said to avoid having to travel to Vietnam so frequently he gave the visa applicant a power of attorney authority to act on his behalf. He said what he meant was is that they were shared properties, and that he didn’t mean he gave her the two houses.
In response to a question from the Tribunal as to what shared assets the parties held around the time that the visa application was lodged in July 2017, the review applicant said the visa applicant was buying and selling properties in Vietnam. He said she bought a property at [number provided] Doan Thi Ngiep, Ward 5, My Tho City, Tien Giang Province, (the Doan Thi Ngiep property), for VND2,000,000 and then later sold it for VND4,000,000. He said that she owned the property, but as they were husband and wife, his authority was required for her to buy properties and he regards any properties purchased by her to be shared assets. The review applicant said his name was not on the title of any these properties, but regardless of whose name was on the title and who paid for it, they belong to both of them because they are husband and wife.
The review applicant said that by 2017 the visa applicant had sold the Doan Thi Ngiep property and moved to the property where she currently resides at [number provided] Le Thi Hang Gam, Ward 04, My Tho City, Tien Giang Province, (the Le Thi Hang Gam property). The review applicant said that the visa applicant paid VND7,000,000 for this property and that he borrowed VND2,000,000 from his mother towards this amount. He said he had fully repaid this money to his mother by 2015. The review applicant said he does not have any documentary evidence that he owns part of the Le Thi Hang Gam property, where the visa applicant resides with her elder son and from where she runs her sewing business. He said the property is in his wife’s name, as he is not allowed to be on the title of the property because he is no longer a citizen of Vietnam. He said they nonetheless consider it to be a shared asset.
The Tribunal asked the review applicant why his power of attorney authority was required for the visa applicant to buy and sell properties in Vietnam, if he is not allowed to go on the title deeds for these properties. The review applicant said he does not know why but because they are husband and wife, both names need to appear on the property transactions even though he is a foreigner and his name cannot appear on the property title documents.
The Tribunal asked the review applicant about the extent to which he and the visa applicant were pooling their financial resources in or around July 2017 for the purpose of meeting financial commitments. In doing so the Tribunal noted that the review applicant had provided evidence of financial remittances to the visa applicant covering a period of years, but relevantly to the current matter he had shown evidence of remitting an amount of $3,500 to the visa applicant in 2016 and $1,000 to the visa applicant in 2017. In response, the review applicant said that since he and the visa applicant were married, he has sent money to her for her general daily expenses. He said that this is his responsibility as her husband.
In relation to the nature of their household arrangements in or around July 2017, the review applicant said he and the visa applicant were mostly in contact with each other through Skype and that they would talk every night. He said that in 2017 he travelled to Vietnam and lived with the visa applicant for a month in her home, the Le Thi Hang Gam property.
The Tribunal asked the review applicant what the proposed household arrangements would be if the visa application is approved. The review applicant said in that situation he and the visa applicant would live together and she would study English before opening a nail salon business here in Australia. He said that they intend to remain living where he currently rents a two bedroom house in Cabramatta because this is close to shops and a good area for a new migrant from Vietnam to live. He said that he was sharing this accommodation with another man, but that the other man moved out in June 2018, because he wasn’t paying his share of the rent. The review applicant said he finds it difficult living by himself, because he is old he worries that if he gets sick there will be no one to look after him. He said that he wants the visa applicant to come and live with him so that they can care for each other as they both get older.
In response to a question from the Tribunal, the review applicant said that he visited the visa applicant in 2016 and 2017. In response to a question, as to why there was over a two-year period between November 2013 and January 2016 in which there was no direct contact between the parties, the review applicant said he did not visit the visa applicant during that time but that they maintained regular contact over the computer and telephone. He said he did not visit the visa applicant during 2014 because he had applied for a review of the Department’s decision to refuse the visa applicant a Partner visa and that he was worried that he may be asked to provide documents, which he would be unable to do if he would not be in Australia. He said that in 2015 he had started work at a new factory and did not have any accumulated annual leave that he could take and that is why he did not visit Vietnam during 2015.
As to the financial aspect of the parties’ relationship at the present time, the review applicant said there is the shared property asset, the Le Thi Hang Gam property and also the sewing business making baby clothes which the visa applicant operates from that property. The review applicant said he regards both the property and the business to be a shared asset. The review applicant said he has not put any money into the sewing business but that he does send the review applicant money from time to time as this is his responsibility as her husband. The review applicant said he and the visa applicant have no shared liabilities and no legal obligations with respect to each other or other people. In relation to the basis on which the parties pay regular household and living expenses, the review applicant reiterated that he sends money to the visa applicant from time to time as this is his responsibility as her husband. As to how he derives his income, he said he works at a factory in Villawood which manufactures parts for medical equipment. He said he has worked there since 2015 and has a net weekly income of $904. He said that the visa applicant’s income comes from her sewing business and that she has no other source of income.
As to the social aspects of their relationship, either in 2017 or at the current time, the review applicant said that when they are together they live happily, eating and sleeping together and that during those periods that they are with each other in Vietnam he helps the visa applicant with her sewing business. The review applicant said the witness support statements he has provided are from people who know his relationship with the visa applicant is 100% genuine.
As to the current circumstances of the visa applicant’s children, the review applicant said they are both grown up and have their own jobs He said the elder son lives with the visa applicant and supports her in the sewing business and that the younger son lives separately from the visa applicant and has his own business selling coal for use in cooking. He said the visa applicant’s younger son is married with two children.
In relation to his own children, the review applicant said he has minimal contact with them because of the attitude of his previous wife and that only one of his children, Thi Thu Coc, is married. He said the wedding was in February this year but that he did not attend because his previous wife would not allow him to participate.
In relation to a question as to whether he has had any medical problems in the last year or so, the review applicant said some time ago he had blood tests which showed that he had a liver infection and also high cholesterol. He said the visa applicant sent him medications for the liver condition and that it is now cured. He said he is not taking any medication at the current time. He said that the visa applicant is in a good state of health and has no medical problems.
The Tribunal noted that the review applicant has provided untranslated records of Skype and other sorts of electronic communication and put to the applicant that limited weight could be attached to this evidence as it is not translated. The review applicant said he took photos of the Skype interactions and provided the other evidence of communication as proof that he and the visa applicant contacted each other regularly. He said that he does not know any other way to prove this.
The Tribunal noted that the documents provided with the review application include photographs, correspondence and other evidence going back as far as 2008 and that it appears to include documents previously provided to the Department with other visa applications. In relation to this evidence, the review applicant said that in 2008 he and the visa applicant were mostly communicating by letters, as at that time there was no online communication options available to them.
The Tribunal invited the review applicant to comment on some particular issues raised by the delegate in their decision record, some of which arose from the visa applicant’s responses when she was interviewed by the delegate. The Tribunal put to the review applicant that the visa applicant’s responses give rise to a general concern that there did not appear to have been the sort of regular communication and understanding of each other’s circumstances usually found between a couple in a genuine relationship.
In relation to the visa applicant’s lack of knowledge of where he was living before 2014, the review applicant said he thinks the visa applicant did not give a clear response because she was nervous, worried and stressed out and therefore didn’t remember things. He said because of this she could not articulate things properly.
In relation to the visa applicant being unable to say when the review applicant moved from Adelaide to Sydney, the review applicant said that she would have known when he moved from Adelaide to Sydney, which was in 2009, so he does not know why she did not give an answer when asked about this. He thinks maybe it was because she was nervous.
In relation to the visa applicant not being able to provide much information about the person the review applicant was sharing his accommodation with, he said that he had shared accommodation with Mr Tho for a number of years and would have talked about him at first with the visa applicant. He conceded that for a number of years he would not have mentioned Mr Tho, or talked about that sort of thing with the visa applicant.

In relation to the visa applicant not been able to provide much information about jobs the review applicant had held, such as at a bakery, meat shop and restaurant, the review applicant said he had talked about these jobs when he first got them but didn’t talk about them later. He said that this was why she would not have remembered information about these jobs.
In relation to why the visa applicant said she could not remember anything about what he did in Australia during 2014 and 2015, the review applicant said he does not know why she would not have remembered anything about his life in those two years. He conceded he did not go and visit the visa applicant during those two years but said that they did keep in contact with each other.
The Tribunal asked the review applicant whether any significant events had occurred in the visa applicant’s life in recent times and he said that her sister died the day after his mother died in October 2018.
The Tribunal asked the review applicant about the circumstances of his first meeting with the visa applicant. He said that it occurred in Virginia, which is a suburb of Adelaide, on 8 December 2005. He said the visa applicant’s brother picked her up from the airport and bought her to his farm, in Virginia, where the review applicant was at that time working.
The Tribunal asked the review applicant if they were both still married to other people when they started their relationship with each other. The review applicant appeared to misunderstand this question and so the Tribunal repeated it and confirmed he understood the question. The review applicant said that neither he nor the visa applicant were still married to other people at the time they commenced a relationship with each other
The Tribunal asked the review applicant when his previous marriage ceased and he said in 2007.
The Tribunal asked the review applicant when he had asked the visa applicant to marry him and he said this occurred in 2007. The Tribunal asked about the circumstances of the marriage proposal and he said he travelled to Vietnam and stayed with the visa applicant and asked her to marry him and that in 2008 he returned to Vietnam and they celebrated the wedding.
The Tribunal asked the review applicant when he and the visa applicant first started staying with each other overnight in the same place. He said this first occurred in 2006 when he visited Vietnam and stayed with the visa applicant in a hotel.
The Tribunal asked the review applicant when the visa applicant’s previous marriage ceased and he said it was in 2006. In response to a question as to what was in his understanding of why the visa applicant’s previous marriage failed, he said because they were no longer happy together or looking after each other. The Tribunal asked when the visa applicant and her previous husband stopped living together. The review applicant said that according to the visa applicant she and her previous husband separated in 1992, but because of the children they still lived under the same roof but in separate bedrooms until she bought a new residential property in 2007. He said they didn’t formally divorce each other until 2006.
The Tribunal asked the review applicant what the status of the visa applicant’s relationship with her previous husband was when she came to Australia in 2005 and 2006. He said that when the visa applicant came to Australia in 2005 and 2006 for holidays her relationship with her previous husband was that they were friends. The Tribunal asked the review applicant what he meant by describing the visa applicant’s relationship with her previous husband as ‘friends’ and he said ‘just like friends, with no love’.
The Tribunal asked the review applicant if the visa applicant has spent any time in Australia as an unlawful non-citizen. The review applicant said she had and that this was when she overstayed her second Visitor visa in March 2006. He said she overstayed because they were in ‘deep’ love and she did not want to leave. He said the visa applicant overstayed her Visitor visa for around four months, during which time she resided at her brother’s farm near Adelaide. In response to a question as to what her brother’s attitude was towards the parties’ relationship, the review applicant said her brother was not happy about it.
The Tribunal asked the review applicant if the visa applicant has at any stage worked whilst she has been in Australia and he said she had not.
The Tribunal noted that in a written statement provided to the Department with the visa application, the review applicant discusses phone calls made to his mother and sister. The Tribunal asked for clarification about what the review applicant was referring to in this part of his written statement. He said that he can remember his mother talked to the Department and that he wanted to correct a misunderstanding about that interaction. He said his mother and the person from the Department talked about whether she had attended his wedding, but at the time his mother assumed she was talking to the review applicant’s ex-wife who was actively trying to obstruct the parties’ relationship and this was why his mother had said she had not attended the wedding.
The Tribunal noted that the parties claim to have been in a relationship for a number of years and that the visa applicant has previously applied unsuccessfully for Partner visas allowing her to join the review applicant in Australia. With regard to this the Tribunal asked the review applicant that in the context of them having so much difficulty getting a visa allowing the visa applicant to come to Australia, why had he not spent more time with her in Vietnam, or moved to Vietnam to live with her. In response the review applicant said he and the visa applicant love each other genuinely and that his only wish is that they can live together until he dies. He said they want to live together and share happiness and that is why they want to be together. He said that no other woman can replace the visa applicant. He said they spent over 10 years trying to get the visa allowing them to be together and that life is hard because he is by himself and they are apart from each other.
Visa applicant’s evidence
The Tribunal asked the visa applicant, in light of the difficulties she has had in getting a Partner visa allowing her to join the review applicant in Australia, why he has not spent more time with her in Vietnam since their marriage. The visa applicant said this is because the review applicant works in a factory and only gets four weeks holiday per year. She said that he comes to Vietnam for those four weeks and would normally spend three weeks with her in their house and one week with his mother. The Tribunal acknowledged what the visa applicant had said but again asked her why the review applicant had not spent more time with her so that they could be together. The visa applicant reiterated this was because he only gets four weeks holiday per year.
As to why the review applicant did not visit her during 2014 and 2015, the visa applicant said in 2014 he applied to court regarding her visa refusal and he was waiting for a decision so he didn’t want to visit her in case any supporting documents were required. She said that in 2015 he started a new job and was worried about taking leave straight away.
The Tribunal noted that the delegate’s decision record indicated the current visa application was lodged in July 2017 and refused by the Department in August 2018, and that an application to the Tribunal to review that decision needed to occur within a matter of weeks from when the Department refused the visa in August 2018. The Tribunal asked the visa applicant, given the review applicant travelled to Vietnam to visit her during 2017 and 2018, why he would have felt he could not travel to Vietnam in 2014 because of a Partner visa application she had made around that time, as he did not appear to have those concerns during 2017 and 2018. In response to this question the visa applicant reiterated that the review applicant didn’t visit her in 2014 because he had applied for a review of the visa refusal and was worried he may have to submit documents in relation to that matter.
The Tribunal asked the visa applicant about her family’s attitudes towards her relationship with the review applicant. She said that her family approve of the relationship and that they have had a good attitude towards it since it began. The Tribunal clarified if all of her relatives approve of the relationship and she said that, yes, all of her relatives approve of the marriage.
The Tribunal asked the visa applicant about the review applicant’s employment history since 2014 and she said in 2014 he was working in a bakery factory as a baker making cakes and biscuits. She said that he now works at a different factory making parts for medical machines. She said he earns a net weekly income of $904.
The Tribunal asked the visa applicant about her employment and business history and she said that she used to sell real estate and now she has a business making baby clothes.
The Tribunal asked the visa applicant if the review applicant has had any medical problems in recent years and she said that he had a liver virus. She sent him medication and now he is fine.
The Tribunal asked the visa applicant if there have been any significant events in the lives of the review applicant’s children and she said one of his daughters, Thi Thu Coc, was recently married, but that her husband did not attend the wedding.
In response to a question about what the proposed household arrangements would be if the visa was approved, the visa applicant said they have arranged to live in Sydney and that she will sell her current house and business in Vietnam and buy a small house for her elder son who currently lives with her. She said she would bring any funds remaining after buying a house for her son with her to Australia, and then after initially learning English she would use those funds to open a nail salon.
The Tribunal noted that when interviewed by the Department for the visa application she was unable to say where the review applicant lived before 2014 and also did not know when he moved from Adelaide to Sydney. In response, the visa applicant said when she was interviewed she was stressed and did not concentrate or focus and didn’t answer questions correctly.
The Tribunal noted that at that time the visa applicant could not provide many details about the review applicant’s employment history, and the visa applicant said that her brain did not work well at that time because she was nervous and stressed and she did not communicate well during the interview.
The Tribunal noted that she had not known much about people who were either sharing the review applicant’s accommodation or recommending him for jobs, and in response the visa applicant said I know the name of the person who recommended the review applicant for the job and can give information about that person now. The Tribunal acknowledged what the visa applicant had said but noted that what it was concerned about was her apparent lack of knowledge about these aspects of the review applicant circumstances when she was interviewed by the Department. In response the visa applicant said back then the review applicant did not give her many details, but now he has given her more information about the lady who he used to work with at the bakery factory who recommended him for a position at the current factory where he works.
The Tribunal asked the visa applicant what she and the review applicant plan to do if the current visa application is not approved. She said that they don’t know what to do in that situation but they will continue to talk every night and he will continue in his job and visit her in Vietnam and she will continue in her business.
In response to a question as to whether she has ever provided misleading information about the status of her relationship with her previous husband when she applied for visas to come to Australia, the visa applicant said she had not provided misleading information.
The Tribunal asked the visa applicant how she described the state of her marriage to her previous husband when she applied for Visitor visas in 2005 and 2006. The visa applicant said at that time the relationship with her previous husband was not happy and that the status of her marriage at that time to her previous husband was painful. The Tribunal asked the visa applicant if she was saying that the status of her marriage to her previous husband at that time was painful but intact, and she said that she and her previous husband had been separated since 1992.
The Tribunal asked the visa applicant if when applying for the Visitor visas had she said she was still married to her previous husband and that she would return to her previous husband and son after her visits to Australia. The visa applicant confirmed that, yes, it is correct that this is what she said on the Visitor visa applications.
The Tribunal asked the visa applicant if she has ever provided misleading or false information about when she and the review applicant started staying together as a couple in the same location and she denied she had ever given false information. She said that the information she gave about this issue was true.
The review applicant’s response to evidence provided by the visa applicant
The review applicant said in relation to the visa applicant’s responses to questions, her responses were not clear because of her ‘clumsy’ personality and the way she listens. He said she couldn’t articulate herself well, but that everything she said was the truth.
Particulars of information put to the review applicant pursuant to s.359A of the Act
There were discrepancies and inconsistencies in the parties’ evidence about the history and nature of their relationship and also between evidence provided by the parties and the information in the Department’s file. There was also information referred to in decision records of the MRT in relation to reviews of previous decisions to refuse the visa applicant’s applications for a Subclass 309 Partner visa. The Tribunal put relevant discrepancies and inconsistencies to the review applicant following the hearing in accordance with s.359A of the Act. The Tribunal explained why the information was relevant and the consequence of it relying on it. The review applicant was provided the statutory time to comment or respond. The particulars of the information put the review applicant were as follows:
a)During the hearing on 26 March 2019 you gave oral evidence that you first met your wife, the visa applicant, on 8 December 2005, on the day her brother picked her up from the airport and brought her to his farm where you were at that time working, in Virginia, which is on the outskirts of Adelaide.
Whereas
At a hearing before the Migration Review Tribunal on 6 December 2010 the visa applicant gave oral evidence you first met on 8 December 2005 at your brother’s friend’s house.
b)During the hearing on 26 March 2019 you gave oral evidence that neither you nor the visa applicant were still married to other people at the time you commenced your relationship. You also said the reason the visa applicant remained in Australia as an unlawful non-citizen after her Visitor visa ceased was because by that time you were deeply in love with each other and she did not wish to be apart from you. Her second Visitor visa ceased on 1 May 2006.
During the hearing you said that by the time the visa applicant came to Australia in 2005 and 2006 for holidays, her relationship with her previous husband was regarded as friends. The Tribunal asked you what you meant by describing their relationship as ‘friends’ and you explained that they were ‘just like friends, with no love’.
In both the form 40SP and 47SP, lodged in July 2017, in relation to the current application for a Partner visa, it states you and the visa applicant made a commitment to a shared life together on 19 October 2006.
Whereas
You and the visa applicant have both previously claimed, at the time of a previous application for a Partner visa, lodged in April 2009 that your relationship commenced in April 2006.
Whereas
Documents provided with the visa and review applications indicate you did not divorce your previous wife until October 2007 and that the visa applicant did not divorce her previous husband until August 2006.
In documents provided with the visa applicant’s first Visitor visa application, lodged in November 2005, she stated she was married and residing at the same address as her husband. This would not have been you, as the two of you did not marry until 2008 and at that stage you had not met the visa applicant. In the application form 48R, she declared her marital status as "married" and that her husband and youngest son would not be travelling with her to Australia. Documents were provided showing the visa applicant and her then husband owned a property in joint names and the property was being used as a boarding house for rent and that they resided at the property.
Documents provided with the visa applicant’s second Visitor visa application, lodged in March 2006, included the same documents relating to the property ownership of the visa applicant and her then husband in Viet Nam. Also included in the application was a household registration book which showed the visa applicant was living with her previous husband, two sons and niece. A curriculum vitae submitted with the application identified her husband as living at the same address with her and her two sons. On the application form 48R she declared her marital status as "married" and that her husband and youngest son would be remaining in Vietnam during her journey.
c)During the hearing on 26 March 2019 you gave evidence that you and the visa applicant first stayed together as a couple when you visited Vietnam and stayed with her in a hotel.
Whereas
·In a form 47SP lodged by the visa applicant in April 2009, in relation to a previous application for a Partner visa, she stated you began a relationship at your home in Australia in April 2006.
·In a sponsorship form 40SP lodged in April 2009, in relation to a previous application for a Partner visa, you stated you commenced a relationship with the visa applicant in April 2006 at your home in Australia.
·In a joint statement made by you and the visa applicant, provided to the Australian Consulate-General in Saigon, you both stated you lived together as husband and wife at your house during the visa applicant’s second visit to Australia in 2006.
·A record of an interview conducted by Department officers with the visa applicant on 4 May 2018 indicates she told the Department that whilst you were separated from your previous wife, you were still living in the same house at the time you commenced your love relationship with your wife in 2006 and that you did not move out of the family home where your previous wife and your children were living until 2007.
d)During the hearing on 26 March 2019 you gave oral evidence that you asked the visa applicant to marry you in 2007,
Whereas
·A form 47SP, lodged by the visa applicant on 17 April 2009, in relation to a previous application for a Partner visa, stated you both formed an intention in January 2008 to marry each other.
·A sponsorship form 40SP lodged on 17 April 2009, in relation to a previous application for a Partner visa, stated you and the visa applicant both formed an intention in January 2008 to marry each other.
·In a joint statement made by you and the visa applicant, which was provided to the Australian Consulate-General in Saigon, you stated the only reason you did not get married during your trip to Vietnam between October 2006 and November 2006 was because you were not divorced from your then wife.
·In a statutory declaration signed by you on 25 March 2010, you stated that during your visit to Vietnam between October and December 2007 your "relationship grew even stronger and in 2008 we decided to take our relationship further and become husband and wife".
·A statement from your mother, dated 30 April 2010, states that in 2008 you and the visa applicant decided to get married and she was invited to your wedding.
e)In a written statement that was provided with the current visa application you refer to your mother taking phone calls that she thought were from your previous wife. When asked about this during the hearing, you said that you can remember your mother talking to the Immigration Department officials and that you wanted to correct a misunderstanding about that interaction. You said your mother and Department officials talked about whether she had attended your wedding but at the time your mother assumed she was talking to your ex-wife, who was actively trying to obstruct your relationship and this was why your mother had said she had not attended the wedding.
Whereas
Information in the decision record of the Migration Review Tribunal’s decision on 2 June 2014 indicates your mother, when interviewed by Department officials over the telephone, stated she did not know about the visa applicant, or about your relationship with the visa applicant and she stated she had not attended the wedding. The decision record in relation to that Tribunal decision proceeded to note that the call to your mother was made by the delegate of the Minister, speaking to your mother in the English language, with the assistance of an interpreter.
f)Information in the decision record of the Migration Review Tribunal’s decision on 2 June 2014 indicates you gave evidence that you had a big fight with your previous wife in 2004, involving violence and that you moved out of the family home at that time and had no further contact with your previous wife.
Whereas
A record of an interview conducted by Department officers with the visa applicant on 4 May 2018 indicates she told the Department that whilst you were separated from your previous wife, you were still living in the same house at the time you commenced your love relationship with your wife in 2006 and that you did not move out of the family home where your previous wife and your children were living until 2007.
g)During the hearing on 26 March 2019 you said that you were required by the Vietnamese authorities to provide what you referred to as a power of attorney, so that the visa applicant could buy and sell properties in Vietnam. Documents provided with the visa and review applications include copies of Contract of Authorizations, whereby you authorised the visa applicant to act on your behalf in relation to property at: [number provided] Doan Thi Ngiep, Ward 5, My Tho City, Tien Giang Province, dated 23 March 2012; and [number provided] Thi Hang Gam, Ward 04, My Tho City, Tien Giang Province, dated 29 January 2016. This appears to be what you refer to as the power of attorney documents.
Whereas
A record of an interview conducted by Department officers with the visa applicant on 4 May 2018 indicates when asked about why the Contract of Authorizations were necessary, as your name was not on the house certificates, the visa applicant said that in relation to the sale of [number provided] Le Thi Hang Gam, Ward 04, My Tho City, Tien Giang Province, the buyer requested a letter from you, as you were her husband. She then explained the property sale did not proceed.
h)Information in the decision record of the Migration Review Tribunal’s decision on 2 June 2014 indicates you and the visa applicant claim you contributed funds towards the purchase of a property purchased by the visa applicant. You were initially unable to say when that property was purchased, or how much it cost. You then said it was purchased about four years before that Tribunal hearing in 2014, whereas the visa applicant claimed it was purchased two years prior to the hearing in 2014.
i)During the hearing on 26 March 2019 you gave oral evidence that the visa applicant has never worked whilst she has been in Australia.
Whereas
At a hearing before the Migration Review Tribunal on 6 December 2010 you gave evidence the visa applicant worked on her brother’s farm during the times she spent in Australia in 2005 and 2006.
This information is relevant to the decision under review as the Tribunal may find there is inconsistent evidence concerning the formation of your relationship, where and when you have resided together, when you became engaged and the circumstances regarding your previous relationships. It is also inconsistent with regard to some of financial aspects of your relationship with the visa applicant, about her circumstances when she was staying in Australia and as to whether your relatives support the relationship. These inconsistencies give rise to the concern that the information provided in support of the visa application is not truthful and cannot be relied upon.
A further concern is whether the visa applicant has in the past provided information on visa applications and other documents which is misleading or not true. This gives rise to whether she can be regarded as an honest source of information about your relationship.
If the Tribunal relies on some or all of this information it may not be satisfied that you and the visa applicant are be living together, or not living apart on a permanent basis; or that you are not in a genuine and continuing relationship and that you do not have a mutual commitment to each other as husband and wife, to the exclusion of all others. This may indicate that the visa applicant may not meet the definition of ‘spouse’ in regulation 1.15A of the Migration Regulations 1994.
If the Tribunal finds that the visa applicant was not your spouse at time of application and is not so at the time of decision, it will affirm the decision to refuse the application for the Subclass 309 Partner visa.

On 10 April 2019, the Tribunal received a response from the review applicant, which included photographs of the visa and review applicant and written statements from the visa and review applicant. The written statement from the review applicant stated in part:
Thank you for your invitation to comment and respond to information. I am pleased to submit the explanation prepared by my wife in Vietnam and I attach copy of her explanation in Vietnamese language as well as a translation of her statement dated 8 April 2019 and translated on 9 April 2019. I hope that you pass this information to the honourable Member of the Tribunal.
Both my wife and I provided many correspondence and evidence in support of our relationship. I personally apologise for any inconsistencies. This is a fourth application which is now before the Tribunal and I hope that the Tribunal can see that our relationship is long term and genuine and for that reason we never gave up and we hope that the Tribunal this time accepts that our relationship is genuine and ongoing and I previously submitted my travel history to Vietnam to be with my wife.
I confirm that whatever inconsistent information was provided was not intentional and not meant to mislead the Department or the Tribunal.
I confirm that our relationship has all the time been lovable, as my wife and I truly love one another and had the desire for closeness and to live together in a committed and mutual relationship. Frankly speaking my wife and I see the quality and commitment in our relationship. We were both divorced and now as a couple we believe that our marriage is successful and we both are committed as husband and wife and we provided evidence about the financial aspect of our relationship, the social aspect of our relationship, the nature of the household and the commitment to each other.
Our bond and lifelong union is clear and well established and we are committed that our relationship will last till death of one of us.
I humbly implore the Member to write back to me if further information is to be clarified. As an Australian I ask that the Tribunal forgive any inconsistencies in the past and take into consideration the continuity and durability of our relationship forward to be reunited soon.
The translated comments from the visa applicant state in part:
I would like to explain the issues you have mentioned in the email now:
A.    reason I first declared meeting on December 8. 2005 at my brother's friend's house. Because when I interviewed, I was too nervous and worried. So my answer was not correct. Since my brother's friend's house was next to my brother's fram, I had a confusion between fram and home in Virginia. suburban Adelaide City.
B. I heard that Australia was very beautiful. Australians were very honest and hospitable, so I also wanted to travel to Australia once. I also did not think I would marry an Australian in the future and I did not remember what I declared. At that time; the filling Service asked me to sign my name and I signed it. The incident happened today so I was ashamed and regretful. In fact, my exhusband and I separated since 1992. but I still lived in the same house and we have seen each other as friends. We lived in different rooms and did different work, and there was no affection for husband and wife. And because my two children were young, I was afraid to influence the morale and learning of my two children, so I had to endure living in suffering, taking joy and happiness when I saw two children growing up. And in August 2006, I decided to divorce after many times failed.
·I did not expect that in April 2006, when I came to Australia for the second time, I met Mr. Doan Van Gioi again (the same case) when we both visited the wedding of my nephew. And we fell in love at the first sight. So we didn't go far apart even though my stay was over. Mr. Gioi advised me to return to Vietnam, then he would return and marry me so that we could lire and find happiness in the rest of our lives when his &time procedure was completed under Australian law.
·In October 2006, when divorce procedure of my was completed. Mr. Gioi returned to ‘Vietnam and lived with me at Phuong Nga Hotel until he returned to Australia.
·In January 2007, when I solved the common property problem with my ex-husband. I
moved to live privately at [address provided] Hamlet 1. Dao Thanh. My Tho City. Tien Giang province.
·In October 2007 when divorce procedure of Mr. Gioi was completed, he returned to Vietnam and lived with me at [address provided] Hamlet 1. Dao Thanh. My Tho City. Tien Giang until he returned to Australia.
·On May 25, 2008 we officially got married. And was recognized by law as legal
husband and Wife. Since then, it has been 12 years See then. we still live happily.
C.        In October 2006 when Mr. Gioi returned to Vietnam, we started living together as
husband and wife at Pltuong Nga hotel.
·In April 2006, I and my sister-in-law (died) went to Gioi's house to know his family.
But when I finished there, I went home and didn't stay overnight (because I went with
my sister-in-law and she was very fastidious)
D.    In both 40SP and 47SP forms, we intended to get married in January 2008 because
·Before October 2007, Mr. Gioi did not finish his divorce from his previous wife (separated). By October 2007, Mr. Gioi had decided to divorce and he returned to Vietnam to live with me at [address provided] Hamlet 1. Dao Thanh. My Tho City. Tien Giang. And then Mr. Gioi proposed to me. In January 2008 we discussed wedding ceremony.
·On May 25, 2008, the wedding was organized with the participation of husband's
family, including: Mum, Aunt, Uncle and siblings (provided with photo evidence).
E.    Before my husband's morn was interviewed. his ex-wife called her to terrorize the
spirit and she said she would destroy our wedding and did not let him sponsor me. That
Liam, when the consul general called to interview my mother-in-law, she thought of was why she was very worried.
·     Later, when the consul general called to interview my mother-in-law, she thought of his ex-wife to get information and then continue to harass, so my husband's mom answered that she didn't attend our wedding. Later finding out that the calling from consulate was true. And my husband's mom wrote a letter apologizing to the Australian Consulate General about the misunderstanding.
FDue to the hard work. the time passed. the age has been old, memory has also been reduced. So when the Consul General's staff asked, I answered incorrectly. Because in April 2006, my sister and my sister-in-law came to Gloi's house. At that time, Mr. Giol only lived alone.
G Because Vietnamese law does not allow foreigners to be named in the house ownership. But also according to Vietnamese law, husband and wife's property is common property if the property is available after marriage. By Vietnamese law when selling common properly of husband and wife, there must be an authorization from wife or husband when deciding to sell to the buyer. In order to avoid property disputes after sale.
H.There was a mistake in 'buying time between two houses that my husband and I had declared. As follows:
·     My husband bought a house. 4 years ago at address [Number provided] Doan Thi Nghiep - Ward 5, My Tho City, Tien Giang province.
·     I bought a house 2 years ago at address [number provided] Le Thi Hong Gam - Ward 4, My Tho City, Tien Giang province.
I.That was a misunderstanding, I only worked on some odd jobs at my brother's farm. Because when I was traveling. I lived there, but I was not a salary-earner.
*** Today, I realize that my answers are incomplete and my stay was in Australia over time and it causes serious consequences and I had to. pay for my 12 years of loneliness and worry. I really regret it, I sincerely apologize before the court and ask the court to
extend my consideration. Let me and my husband be reunited at an old age. I promise that I will devote my best and comply with Australian law.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the visa and review applicants were in a genuine spousal relationship at the time of application and continue to be in a genuine spousal relationship at the time of this decision.
The Tribunal has had regard to the documentary evidence that has been presented with the visa and review applications, which is contained in the Department and Tribunal files. The Tribunal has considered the parties’ oral evidence. The Tribunal has also considered some information that was not provided by the applicant and where appropriate has invited the applicant to comment on this information in accordance with the Act’s procedural requirements.
Credibility
In light of the inconsistencies and discrepancies contained in information provided by the parties in the current and visa applications, the Tribunal has considered it necessary to form a view as to whether information provided by the parties’ in support of their claims can be relied upon. For the following reasons the Tribunal has serious concern as to the reliability of information provided by the review and visa applicant.
The Tribunal notes that the s.359A response from the review applicant provides a chronology of the parties’ relationship. This does not however, in and of itself, address the inconsistent and contradictory nature of the particulars of information put to the review applicant pursuant to s.359A. It also apologises for past inconsistencies in evidence provided by the parties. The Tribunal acknowledges this apology but does not consider it to resolve concerns arising from aspects of the parties’ evidence in support of their claims.
The parties both claim that aspects of the visa applicant's oral evidence, either during hearings or when interviewed by officers from the Department, were affected by her feeling nervous and stressed. The Tribunal acknowledges that people may become nervous and stressed in such situations, but is not satisfied any such feelings account for the extent of the inconsistent and contradictory information which is outlined below.
The inception and development of the parties’ relationship
The parties have given inconsistent information as to where they first met, whether this was the home and farm of the visa applicant’s brother, or one of his neighbour’s homes. The Tribunal is not satisfied the parties have provided an adequate explanation for this inconsistency but has not placed undue weight upon this factor, as it is a relatively minor inconsistency.
The inconsistency in relation to when the parties commenced a relationship with each other and first started spending nights together is of more concern to the Tribunal, as these are more significant events in the lives of any couple. During the hearing the review applicant gave evidence that neither he nor the visa applicant were married to their previous partners at the time they commenced their relationship. Relevantly, the visa applicant divorced her previous husband in August 2006 and the review applicant divorced his previous wife in October 2007.
In forms associated with the current Subclass 309 visa application, the parties claim they made a commitment to a shared life together on 19 October 2006, whereas in forms associated with a previous application lodged in April 2009, the parties claimed they made this level of commitment to a relationship in April 2006. Elsewhere, in documents provided with the application for a Subclass 309 Partner visa in April 2009, the parties stated they started living together as husband and wife at the review applicant’s house during the visa applicant’s second visit to Australia in April 2006. This is not consistent with a record of interview conducted by Department officers with the visa applicant in May 2018, which indicates that whilst the review applicant was separated from his previous wife, he was still living under the same roof at the time the parties commenced their relationship in 2006. This in turn is inconsistent with evidence provided by the review applicant to the MRT in 2014, where he said he moved out of the home he had shared with his previous wife in 2004. The Tribunal is not satisfied a claim of memory loss accounts for a lack of recall of a significant event such as whether the review applicant was living alone, or still with his previous wife at the time the parties have at times claimed they started cohabiting together in 2006.
The claim that the parties started living together at the review applicant’s home in South Australia in 2006 is also not consistent with his oral evidence during the hearing, where he said he first started spending nights together with the visa applicant when he visited Vietnam in October and they stayed in a hotel together.
The Tribunal is not satisfied the parties have provided an adequate explanation for the inconsistency in information provided regarding the inception of the relationship. The s.359A response in relation to this issue provides a chronology of dates upon which the parties wish to rely but does not satisfactorily explain the inconsistent information they previously provided on this issue.
There is further inconsistency about when the parties agreed to marry. The s.359A response does not address these inconsistencies, which include that in the documents provided with Subclass 309 Partner visa in April 2009, the parties provided consistent information that they formed the intention in January 2008 to marry each other, whereas in a statement provided to the Australian Consulate-General in Saigon the parties stated the only reason they had not married during the review applicant’s trip to Vietnam in October 2006 was because he had not yet divorced his previous wife. Both of these claims are inconsistent with evidence the review applicant gave during the hearing, in which he said he asked the visa applicant to marry him in 2007.
Due to the extent of inconsistencies and discrepancies in information the parties have provided, over time, regarding the inception and development of their relationship, which the Tribunal is not satisfied has been satisfactorily explained, the Tribunal is not satisfied it can rely on the information provided by the parties about these aspects of their relationship and also considers these inconsistencies to give rise to a general concern about the reliability that can be accorded to evidence they have provided in support of their claims. In forming this view the Tribunal acknowledges that some years have now passed since the circumstances discussed in this section, however, due to the significance of the events involved, the Tribunal is satisfied they remain relevant to the current application.
Information included on Visitor visa applications lodged by the visa applicant in 2005 and 2006
The parties have not provided an explanation for information provided by the visa applicant at the time she applied for Visitor visas allowing her to travel to Australia in 2005 and 2006. The visa applicant has consistently claimed her marital relationship with her previous husband broke down in 1992 and that whilst she remained living under the same roof as him until January 2007, they were just friends and were definitely no longer in a marital relationship. In the first Visitor visa application, lodged by the visa applicant in November 2005, she stated she was married and residing at the same address as her husband. She declared her marital status as ‘married’ and that her husband and youngest son would not be travelling with her to Australia. In the second application the visa applicant provided similar information and also included evidence from a household registration book which showed she was at that time living with her previous husband.
The inconsistency in the visa applicant’s claim as to when her marital relationship with her previous husband ceased and information provided with her Visitor visa applications in 2005 and 2006 has not been adequately explained. In her oral evidence during the hearing the visa applicant initially described her previous marriage as unhappy and painful at the time of the visa applications and at a further point in the hearing, as having broken down when she and her previous husband separated in 1992. In the s.359A response, the visa applicant states she merely signed a document that was put in front of her. The Tribunal consider this response to be disingenuous and not to remove responsibility from the visa applicant to have checked that information provided on her visa applications were correct, or why mistaken information would have been placed on separate applications. The visa applicant’s response also seems to infer that as she did not anticipate meeting an Australian man she would decide to marry, she put information on the visa application forms that she thought would increase her chance of getting the visas. Taken at face value this appears inconsistent with the claim she signed the applications without real knowledge of their contents. The Tribunal considers that the visa applicant has either provided unreliable information about the circumstances of her previous marriage when applying for Subclass 309 Partner visas, or has provided misleading information in Visitor visa applications. Either of these scenarios gives rise to serious concern as to whether the visa applicant can be regarded as a truthful witness.
Whether the visa applicant breached a no work condition at times she has previously been in Australia
During the hearing the review applicant gave oral evidence the visa applicant had not at any stage worked when she was previously in Australia. This is contradictory of evidence he gave when appearing before the MRT in 2010, where he said the visa applicant worked on her brother’s farm during the time she spent in Australia in 2005 and 2006. In the s.359A response the parties claim that ‘this was a misunderstanding’ and that the visa applicant had ‘worked on some odd jobs’ at her brother’s farm during 2005 and 2006. The Tribunal considers this to be a concession the parties have made in response to the visa applicant’s previous evidence being put to them and that it is a response couched in minimising language. The Tribunal considers the review applicant’s responses regarding this issue during the hearing on 26 March 2019 to give rise to a concern about the reliability of his evidence. The Tribunal is also concerned that the visa applicant's concession that she worked on her brother’s farm whilst on Visitor visas in 2005 and 2006 displayed a disregard for conditions attached to that sort of visa.
Ownership of real estate in Vietnam
Over time, the parties have provided inconsistent information regarding the ownership of property is in Vietnam.
During the hearing the review applicant told the Tribunal that the visa applicant bought and sold properties in Vietnam for profit. The visa applicant told the Tribunal that at the present time her income comes from a sewing business manufacturing baby clothes from her residence and that prior to this she sold real estate. On the basis of this information, the Tribunal finds the visa applicant has earned income from selling real estate in her home country.
In a written statement provided to the Department in relation to the current application, in which the review applicant commented on the decision record in relation to the visa applicant’s third application for a Subclass 309 Partner visa, the review applicant claimed he gave the visa applicant two houses worth millions of Vietnam Dong. During the hearing on 26 March 2019 the review applicant withdrew this claim and conceded he did not own the two houses, which were in fact purchased by the visa applicant and that he did not contribute funds towards the purchase of either of these properties. He said that he regarded them as a shared asset because they were purchased by the visa applicant, who is his wife.

The review applicant indicated the two properties referred to in his statement were the Doan Thi Ngiep property and the Le Thi Hang Gam property. This is in contrast to information provided by the visa applicant in the response to the s.359A letter, where she claims the review applicant purchased the Doan Thi Ngiep property four years ago, that is in 2015 and that she purchased the Le Thi Hang Gam property two years ago, that is in 2017.
This is in turn not consistent with a translated copy of a ‘Guarantee Minutes About Properties’ document which states the review applicant contributed money towards the purchase of the Doan Thi Ngiep property. This document goes on to state that the Doan Thi Ngiep was the personal property of the visa applicant, purchased by her in June 2011, with her having full rights in relation the aforementioned property.
This is also inconsistent with evidence provided by the review applicant during the hearing, when he claimed he borrowed VND2,000,000 from his mother, which he contributed towards the purchase price of the Le Thi Hang Gam property and which he claimed he had fully repaid to his mother by 2015.
The Tribunal has also noted that when the review applicant appeared before the MRT in 2014 he claimed to have contributed funds towards the cost of a property purchased by the visa applicant but was unable to say with any certainty when the property was purchased or how much it cost. He subsequently said the property was purchased four years prior to the Tribunal hearing in 2014, namely 2010, whereas, the visa applicant claimed the property was purchased two years prior to the hearing in 2014, that is, 2012.
The parties emphasised the need for both their names to be placed on Contract Authorisation documents, whereby the review applicant gave the visa applicant his power of attorney in relation to real estate property purchases in Vietnam, and in support of this claim have provided translated copies of two such documents pertaining to the Doan Thi Ngiep and Le Thi Hang Gam properties. They claim that these authorisations were required by the Vietnamese authorities so as to avoid property disputes in the event of future marital breakdown. The review applicant gave evidence during the hearing that this was the case even in the circumstances where the properties were purchased by the visa applicant without him contributing any funds towards their purchase price. The Tribunal notes that this was inconsistent with the s.359A response where the visa applicant stated that the review applicant had purchased one of the properties in question.
Because of the extent of these inconsistencies, the Tribunal is not satisfied it can rely on the information provided by the parties about real estate property assets in Vietnam and also considers these inconsistencies to give rise to a general concern about the reliability that can be accorded to evidence the parties have provided about the financial aspects of their relationship.
Information provided by the review applicant's mother
In the written statement in which the review applicant discusses issues arising from the third application for the Subclass 309 Partner visa, he referred to information provided by his mother during phone calls she thought were with his previous wife. In explaining what he was referring to, the review applicant gave evidence during the hearing that his mother had provided inaccurate information about whether she attended the party’s wedding because she was worried his ex-wife was trying to obstruct the parties’ relationship. In the s.359A response the visa applicant provides an explanation that is consistent with that provided by the review applicant during the hearing. The Tribunal is not satisfied that the parties have provided a plausible explanation for why the review applicant’s mother told officers from the Department that she had not attended the parties wedding and also denied knowledge of the visa applicant. In forming this view, the Tribunal notes the s.359A response failed to address the unconvincing nature of this claim, as the review applicant’s previous wife was born in Vietnam, and the person interviewing the review applicant’s mother did so in English, with the assistance of an interpreter. The Tribunal has also noted that in the written statement referred to above the review applicant also contends in most strong terms that his ‘mother is in state of good mind and I affirm that she has never answered any questions without any thinking what she said correct or wrong’.
Overall comment on credibility concerns
The extent of inconsistencies and contradictions that is evident in information provided by the parties in support of their claims is of great concern to the Tribunal. Whilst much of the information which was inconsistent with information available from other sources or inconsistent and contradictory to information provided elsewhere by either the visa or review applicant was provided some years prior to the current visa application, the concerns arising from this information go to a central concern as to whether the visa and review applicant are truthful witnesses. The visa and review applicant have conceded that they have at times provided incorrect information about their circumstances and have put this down to memory fading over time and also nervousness during events such as interviews or hearings. The Tribunal is not satisfied this provides an adequate explanation for the concerns detailed in this section and when considered cumulatively, the Tribunal finds the parties are not reliable witnesses and is satisfied that evidence provided by them, both orally and in documentary form, should be carefully considered in light of this finding.
Whether the parties are in a spouse or de facto relationship
Clause 309.211(2) and cl.309.221 require that at the time the visa application was made, and at the time of this decision, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.
‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and review applicant’s household, and their commitment to each other as set out in r.1.15A(3) of the Regulations, 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?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.
The couple were married in Vietnam in May 2008. A translated certificate of marriage from the Vietnamese authorities was submitted to the Department.
The Department’s file also includes a copy of Divorce orders in respect to the review applicant and visa applicant’s previous marriages. There is nothing before the Tribunal to suggest the parties’ marriage is not valid.
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?
Financial aspects of the relationship

100. In considering the financial aspects of the parties’ relationship, the Tribunal recognises that the parties have resided in different countries and that this can influence the extent to which they have combined their finances.
Joint ownership of real estate or other major assets
101. The Tribunal is not satisfied that the evidence demonstrates that the parties own any property together. For the reasons discussed elsewhere in this decision, the Tribunal does not accept the review applicant’s contention that the Le Thi Hang Gam property should be regarded as a shared asset. The Tribunal is also not convinced as to why the sewing business making baby clothes operated by the visa applicant in Vietnam should be regarded as a shared asset. There is no evidence of the parties sharing any contractual arrangements in relation to this business, or that the visa applicant has contributed funds towards the establishment or running costs associated with the business.
Joint liabilities
102. The review applicant said he and the visa applicant have no shared liabilities. The Tribunal accepts this claim and notes it is consistent with the available evidence, which does not demonstrate that the parties have had any form of shared liability prior to the time of application in July 2017, or in the period since that time.
The extent of any pooling of financial resources, especially in relation to major financial commitments
103. The Tribunal accepts the review applicant has remitted funds to the visa applicant in Vietnam. He claimed these were funds sent to the visa applicant for her day to day living expenses. There is no credible evidence of how funds remitted to the visa applicant were used. Contrary to the parties’ claims, there is nothing in the available evidence that would demonstrate the parties have pooled their funds towards major financial commitments, such as property purchases. There is no claim the parties have pooled funds towards meeting costs associated with establishing or running the visa applicant’s current business interests.
As to whether one person in the relationship owes any legal obligation in respect of the other
104. The review applicant said he and the visa applicant have no legal obligations with respect to each other, or other people.
105. The Tribunal gave consideration to the Contract of Authorization and Guarantee Minutes About Properties documents provided with the visa and review applications. The Tribunal has unresolved concerns regarding the Contract of Authorization in relation to the Le Thi Hang Gam property, which would appear to be the property assets potentially relevant to both the time of application and the time of this decision. The review applicant conceded during the hearing that he did not contribute any funds towards the purchase of this property and claimed his names were not able to be placed on the title deed for the property. As discussed elsewhere in this decision, this is not consistent with other claims made by the parties and is also not consistent with the translation of the Contract of Authorization in relation to the Le Thi Hang Gam property, which describes the review applicant as a co-owner and co-user of property. The parties have both claimed the Contract of Authorization was required by the Vietnamese authorities and also that such a power of attorney arrangement was made in relation to Le Thi Hang Gam property at the behest of a private individual who was interested in purchasing the property. The Tribunal is not satisfied a convincing explanation for why there is inconsistent information as to why Contract of Authorization documents were arranged, and is concerned that a primary motivation for seeking any such documents may have been to strengthen the visa application. As a consequence, the Tribunal has placed no weight on this factor as evidence of a legal obligation that the parties have entered into with respect to each other.
The basis of any sharing of day to day household expenses
106. The Tribunal accepts that that there is evidence of financial support between the parties over time. Relevantly to this application, it would appear the review applicant remitted funds to the visa applicant amounting to around $3,500 in 2016, $1,000 in 2017 and $6,400 in 2018. The review applicant claims that he sent the visa applicant these funds for her daily living expenses and because he considers it his responsibility as her husband. The Tribunal has placed some weight on this factor, however, this weight is limited by the lack of specific evidence as to where the funds remitted by the review applicant came from and to what use they were put by the visa applicant.
Overall assessment of the financial aspects of the parties’ relationship
107. With respect to the financial aspects of the parties’ relationship the Tribunal accepts that there are difficulties associated with a couple pooling their finances when they reside in different countries. However, the parties claim to have been in a genuine marital relationship for over 10 years and there is no evidence of the parties’ pooling their finances towards major financial commitments, having shared liabilities or credible legal obligations with respect to each other. The Tribunal accepts there may be constraints on the parties jointly owning real estate in the visa applicant’s home country, but considers it of significant concern that the parties have provided inconsistent and at times contradictory claims with regard to this particular issue. The Tribunal accepts there is evidence of financial support between the parties, but for the reasons explained, the weight given to this factor is limited.
108. In considering the overall financial aspects of the parties’ relationship, the Tribunal is not satisfied that when considered in conjunction with concern about the reliability of the parties’ evidence, they support the contention the parties were in a genuine spousal relationship at the time of application in July 2017 or at the time of this decision.
Nature of the Household
109. In respect of the nature of the household, the Tribunal notes that it is difficult to assess these criteria. The review applicant lives in Australia, while the visa applicant lives in Vietnam.
Joint responsibility for the care and support of children
110. Both the visa and review applicant have children from their previous marriages; there is however no claim in relation to the current application that they have any ongoing responsibility for the care and support of these children.
The living arrangements of the parties and any sharing of the responsibility for housework
111. The documents provided with the review application include translated Applications for Verification of Temporary Stay, which state the review applicant stayed at the Le Thi Hong Gam property on the following dates: 21 March 2012 to 20 April 2012, 16 October 2013 to 12 November 2013, 29 January 2016 to 26 April 2016 and 6 March 2017 to 6 April 2017. This is mostly consistent with dates outlined in a written statement the review applicant provided to the Tribunal on 5 October 2018. In this statement he claimed he went to Vietnam between 28 July 2016 and 3 March 2016. The Tribunal has taken the reference to July to be a typographical error and that the review applicant intended to state he was in Vietnam between January 2016 and March 2016, which is consistent with his movement records.
112. The Tribunal has however noted that some of these dates referred to in the Verification of Temporary Stay documents add to the concern arising from the visa applicant’s claim the Le Thi Hong Gam property was only purchased two years ago, which would presumably be during 2017. Taken at face value this makes it implausible the parties stayed together at this location in the period between 2012 and 2017. The Tribunal notes that the parties have claimed this property was purchased at an earlier date, but the Tribunal has found the parties’ claims in relation to real estate owned by the visa applicant to be, in general, unreliable. In the view of the Tribunal there is concern the verification documents were sought so as to support the visa application and that they are not an accurate record of the review applicant’s movements in Vietnam. The Tribunal has also noted that in the written statement provided to the Tribunal in October 2018 the applicant has stated he went to Vietnam on the aforementioned dates and on one further occasion from 26 March 2018 to 22 April 2018. He did not explicitly state in the written statement that he stayed with the visa applicant during all of these periods. Elsewhere the review applicant has stated he again travelled to Vietnam for his mother’s funeral proceedings in the latter part of 2018 and highlighted photographs taken of the visa applicant attending funeral rites and also accompanying him at the airport at the time of his arrival and departure.
113. In the view of the Tribunal, when considered in light of the concern as to the reliability of the parties’ evidence, the Verification of Temporary Stay documents and the frequency of the review applicant’s travel to Vietnam does not establish that the parties have cohabited in Vietnam to the extent they have claimed. The Tribunal accepts the parties may have stayed in the same location during periods when the review applicant has been in Vietnam, but is not satisfied this involved them establishing a household in which they shared responsibility for housework or costs associated with the household.
Overall assessment of the nature of the parties’ household arrangements
114. After considering the available evidence with regard to the nature of their household, the Tribunal finds that there is no current or past joint responsibility for the care and support of children. The Tribunal finds there is limited credible evidence of the parties sharing housework or other responsibilities associated with the usual household arrangements of a couple in a genuine spousal relationship. Whilst acknowledging the difficulties in demonstrating household arrangements when the parties reside in different countries, the Tribunal is not satisfied that the evidence with regard to this aspect of their relationship was, at the time of application in July 2017 or at the time of this decision, indicative of a couple in a genuine spousal relationship.
Social aspects of the relationship
Whether the persons represent themselves to other people as being in a spousal relationship with each other
115. The Tribunal acknowledges that the p arties registered their marriage in Vietnam.
116. No photographs of the parties with other people are apparent on the Department’s file, although such photographs are referred to by the delegate and on this basis the Tribunal accepts they were provided with the visa application and may have been returned to the parties. The Tribunal accepts these photographs showed the parties together with both relatives and friends in a variety of situations and gives some weight to this evidence, reflecting they were representing themselves to other people as a couple around the time of application.
117. The Tribunal has also reviewed photographs taken at the review applicant’s mother’s funeral and at an airport and accepts the parties appear together in the company of members of the review applicant’s family and the visa applicant’s sister in some of these photographs. The Tribunal has given some weight to this evidence.
The opinion of the persons’ friends and acquaintances about the nature of the relationship
118. The Tribunal has reviewed witness support declarations provided at the time of application in support of the parties’ claim that their relationship is genuine.
119. The Tribunal is not satisfied weight can be given to the declaration of Albert Tran, as he claims to have been introduced to the visa applicant in the review applicant’s home in 2005, at which time he states he observed them to be very passionate with each other. This timing is not consistent with some of the claims made elsewhere by the visa and review applicant that they did not commence a relationship until 2006 at the earliest, and also the visa applicant’s claim that the review applicant still resided with his previous wife on a ‘separated but living under the one roof’ basis at the time the parties commenced a relationship in 2006. Due to this fundamental inconsistency in information provided by Mr Tran, the Tribunal does not consider his opinion about the nature of the parties’ relationship to be reliable.

120. The Tribunal is satisfied some weight can be given to the declaration of Vu Duy Hieu Lam, as he has provided a plausible account of his contact with both the review and visa applicant and for his opinion that the parties’ relationship is genuine.
121. The Tribunal has reviewed translated Application for Relationship Certification documents from three of the visa applicant’s employees. These documents appear to be the Vietnamese equivalent of a witness support declaration. They have been provided by Phan Thi Truc Phuong, Nguyen Thi Thanh Trang and Le Thi Ngoc Thanh. The Tribunal has placed no weight on these documents, as they provide exactly the same brief comments which do not explain in sufficient details as to why they would attest to the genuine nature of the parties’ relationship.
122. No further witness support statements were provided with the review application and as a consequence there is no information about the current opinions of the parties’ relatives, friends and acquaintances about the nature of their relationship.
As to any basis on which the persons plan and undertake joint social activities
123. With the exception of participation in the funeral of the review applicant’s mother in 2018, there is little credible evidence the parties have, or intend to undertake joint social activities together. The Tribunal accepts the review applicant has visited Vietnam on one occasion in 2016, 2017 and on two occasions in 2018. The Tribunal acknowledges the review applicant’s capacity to travel on more occasions than this is influenced by the amount of annual leave he accrues from his employment in Australia. However, as the Tribunal is not convinced the parties spent the amount of time with each other that they have claimed during the review applicant’s trips to Vietnam, it has not regarded these trips to Vietnam as strong evidence of the parties undertaking joint social activities.
Assessment of the social aspects of the parties’ relationship
124. The Tribunal acknowledges the amount of documentary evidence provided with the visa and review applications and accepts photographs available to the Department may have shown the visa and review applicant together and with other people during trips made by the review applicant to Vietnam in 2016 and 2017. The Tribunal has placed some weight on this evidence and upon the photographs showing the parties’ at the review applicant’s mother’s funeral rites. The Tribunal has placed no significant weight on photographs taken at airports where a party is arriving or departing, as the Tribunal is not satisfied these demonstrate meaningful shared social activity and are easily contrived for the purpose of supporting visa applications.
125. The Tribunal is however concerned that there is no recent witness support attesting to the nature of the parties’ relationship and that of five declarations provided with the visa application speaking to the time of application circumstances, the Tribunal has found only one from Vu Duy Hieu Lam to be credible. There is little indication the parties jointly plan and undertake social activities together and only limited evidence that they represent themselves to the community at large as a couple. For these reasons the Tribunal does not consider the social aspects of the parties’ relationship support a contention they were at the time of application, or at are at the time of this decision, in a genuine and continuing spousal relationship.
The nature of the persons’ commitment to each other
The duration of the relationship
126. The parties have provided inconsistent information about precisely when their relationship commenced, but it is apparent they would claim it was between 11 and 13 years ago. They married in May 2008. However, the Tribunal is not satisfied the parties’ claims about their relationship can be relied upon and accordingly has placed only limited weight upon this factor.
The length of time during which the persons have lived together
127. The parties reside in different countries and the Tribunal is not satisfied their claims with respect to when they have actually cohabited for periods since meeting each other in 2005 to be reliable. The Tribunal has placed no weight upon this factor.
The degree of companionship and emotional support that the persons draw from each other
128. The parties have provided voluminous untranslated Skype records with the visa and review applications, much of it dating from periods significantly before the time of application. The Tribunal acknowledges the review applicant’s claim he provided this and other evidence such as copies of personal correspondence, with extracts translated and telephone records in an endeavour to demonstrate the parties maintain regular communication with each other. The Tribunal has however placed no weight on these documents, as written correspondence from the 2007 to 2010 period does not demonstrate the degree of companionship and support the parties may have provided each other at the time of application for the current visa in 2017 or as to the extent of these factors that are present in the parties’ relationship at the current time.
129. For similar reasons the Tribunal has not placed any significant weight on the applicant’s lack of travel to Vietnam in the 2014 and 2015 period, as this is also not directly relevant to either time of application or time of decision circumstances in the parties’ relationship.
130. The Tribunal does however consider the parties’ explanation as to why the review applicant did not travel to Vietnam in that period reinforces the overall concern about the credibility of their claims. There is, in the view of the Tribunal, an inherent contradiction in the claim the review applicant was deterred from travelling in 2014 because there were matters underway regarding previous Subclass 309 visa applications, whilst he experienced no such qualms when he undertook travel to Vietnam in 2017 and 2018.
131. With regard to more recent untranslated Skype records and screenshots showing images of the parties on Skype, the Tribunal is not satisfied they demonstrate meaningful companionship and support, as the content of discussions are not known to the Tribunal and such evidence, and as well phone records which show phone calls have taken place, are the sort of evidence that is easily manufactured to support a visa application.
132. The Tribunal has given some weight to the visa applicant’s knowledge of health issues affecting the review applicant in recent years and of their mutual knowledge of significant bereavements in each other’s families.
As to whether the persons see the relationship as a long term one
133. The parties claim that they see their relationship as long term and they have made repeated applications for a Partner visa which would allow them to be together in Australia. The review applicant however gave no convincing response when asked about discussions that may have occurred between him and the visa applicant about him joining her in Vietnam over the longer term, should her current application be unsuccessful.
Assessment of commitment aspects
134. The Tribunal acknowledges the amount of evidence provided in support of the parties’ claim they are in a long term, emotional supportive relationship. The Tribunal has not placed weight on a considerable amount of this evidence, due to it being not translated, not revealing content of claimed electronic communications, or not relevant to the time of application and time of decision circumstances under consideration in the current review. The weight given to the parties’ insight into each other’s family losses and health issues impacting on each other does not outweigh the concern the Tribunal has about the unreliability of the parties’ claims about the nature of their relationship.
CONCLUSION
135. The cumulative concerns that it has identified results in the Tribunal not being satisfied that the parties are credible witnesses when it comes to all of their evidence about the nature of their relationship. The Tribunal acknowledges the review applicant’s submission that the relationship had existed for over 11 years. The Tribunal acknowledges that the review applicant has made numerous trips to Vietnam but is not convinced the parties have established a joint household during all of these visits.
136. The Tribunal is aware that the visa applicant has made three prior visa applications and the parties claim that their ongoing applications indicate their commitment to the relationship. The Tribunal is not convinced by this claim and finds the parties have collaborated on an ongoing basis to provide the visa applicant a pathway to achieving permanent residency in Australia. Whilst such a motivation is not antithetical to a genuine spousal relationship existing. In the particular instance of this case, the Tribunal considers the cumulative concerns about the reliability of the parties evidence gives rise to the conclusion the parties relationship is not genuine.
137. The Tribunal is not satisfied the evidence demonstrates that the parties have a mutual commitment to a shared life as a married couple to the exclusion of all others, this is due to the inconsistency in the parties’ evidence regarding their previous marriages and the concern that explanations they have provided for these inconsistencies cannot be relied upon.
138. The Tribunal is not satisfied the evidence demonstrates that the parties live together and not separately and apart on a permanent basis. The Tribunal accepts there may be periods in which the parties have spent time together. However the Tribunal is not satisfied such occasions demonstrates the parties have at any stage established a shared household. The Tribunal considers that there are also unresolved concerns regarding the parties evidence as to claimed periods in which they stayed together, either in Vietnam or Australia.
139. The Tribunal acknowledges the evidence of phone communication, financial transfers, multiple statements from third parties and other evidence. However, for the reasons discussed the Tribunal has not found the bulk of this evidence convincing and this evidence does not overcome the Tribunal’s concerns which are detailed in earlier sections of this decision. The Tribunal is satisfied the evidence provided by the parties, such that it is relevant to the time of application or the time of decision, has been prepared in an endeavour to support the visa applicant’s claims so as to achieve a favourable outcome from the current review.
140. Given the above findings, the Tribunal is not satisfied that at the time the visa application was lodged and at the time of this decision the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing. The Tribunal therefore finds that the visa applicant does not meet the definition of ‘spouse’ in s.5F(2)(b)-(d).
141. The visa applicant cannot satisfy cl.309.211(3) because the parties were married at the time of application.
142. As the visa applicant does not meet the definition of spouse she does not meet the requirements of cl.309.211 or cl.309.221.
143. For the reasons above, the Tribunal finds the visa applicant does not satisfy the criteria for the grant of the visa.
DECISION
144. The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.
David Barker
Member

ATTACHMENT - Extract from Migration Regulations 1994
1.15ASpouse
(1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.
(2)If the Minister is considering an application for:
(a)a Partner (Migrant) (Class BC) visa; or
(b)a Partner (Provisional) (Class UF) visa; or
(c)a Partner (Residence) (Class BS) visa; or
(d)a Partner (Temporary) (Class UK) visa;

the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3)The matters for subregulation (2) are:
(a)the financial aspects of the relationship, including:
(i)     any joint ownership of real estate or other major assets; and
(ii)    any joint liabilities; and
(iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)     whether one person in the relationship owes any legal obligation in respect of the other; and
(v)    the basis of any sharing of day‑to‑day household expenses; and
(b)the nature of the household, including:
(i)     any joint responsibility for the care and support of children; and
(ii)    the living arrangements of the persons; and
(iii)     any sharing of the responsibility for housework; and
(c)the social aspects of the relationship, including:
(i)     whether the persons represent themselves to other people as being married to each other; and
(ii)    the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)     any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including:
(i)     the duration of the relationship; and
(ii)    the length of time during which the persons have lived together; and
(iii)     the degree of companionship and emotional support that the persons draw from each other; and
(iv)     whether the persons see the relationship as a long‑term one.

(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

[2019] AATA 3650

3 June 2019

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