Duong (Migration)

[2024] AATA 645

Duong (Migration) [2024] AATA 645 (20 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Minh Ba Duong

VISA APPLICANTS:  Mrs Thi Lien Le
Mr Phuong Dong Tran
Master Phuong Nam Tran

REPRESENTATIVE:  Mr Huu Loc Nguyen (MARN: 1795573)

CASE NUMBER:  2017050

DIBP REFERENCE(S):  BCC2019/799440

MEMBER:Margie Bourke

DATE:20 March 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.

Statement made on 20 March 2024 at 7:42am

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – validly married – extensive records of communication – limited financial support – sponsor’s travel to Vietnam – sponsor and visa applicant resided at the same address as their previous partners – sponsor remained as carer for a previous partner – ongoing committed relationships with previous partners – decision under review affirmed    

LEGISLATION

Migration Act 1958, ss 5, 65, 359
Migration Regulations 1994, Schedule 2, cls 309.211, 309.221. 309.311; r 1.15

CASES

He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 October 2020 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant (the visa applicant) applied for the visa on 9 January 2020 on the basis of her relationship with the 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 who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because the delegate was not satisfied there was sufficient evidence to demonstrate the first named applicant was the spouse of the sponsor as defined by s.5F(2) of the Act.

4. The hearing was initially scheduled for 7 February 2024, but was postponed to 14 February 2024.

5. The review applicant appeared before the tribunal on 14 February 2024 to give evidence and present arguments. The tribunal also received oral evidence from the three visa applicants and a witness, Thi Bich Hong Nguyen, who attended the hearing by video from overseas. The tribunal received oral evidence from another witness Thuy Nhi Tran, who attended the hearing in person.

6. The hearing was conducted with the assistance of an interpreter in the English and Vietnamese languages. The interpreter initially attended the hearing by video, but shortly after the review applicant commenced his evidence, the interpreter lost video connection, and thereafter assisted the tribunal hearing by telephone connection.

7. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

8. For the following reasons, the tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   SPOUSE/DE FACTO (cl 309.211(2), cl 309.221)

   Whether the parties are in a spouse or de facto relationship

9. Clause 309.211(2) requires that, at the time the visa application was made, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. With limited exceptions that only apply in relation to a decision to grant or not grant a Subclass 309 visa made on or after 20 August 2022, the visa applicant must continue to be the spouse or de facto partner at the time of the tribunal’s decision: cl.309.221. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

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

    Assessment of evidence of the relationship before the tribunal

11. The tribunal has considered the information provided to the Department, the extensive submissions provided to the Tribunal and the oral evidence in the hearing.

12. The review applicant and the visa applicant provided the Department with telephone records, and provided the tribunal with screenshots of messages and video calls. The screenshots were not translated, but the tribunal accepts that the review applicant and the visa applicant were in regular contact. The review applicant provided the tribunal with extensive records of communication including phone and video calls and extensive photo collections. The tribunal accepts the review applicant and visa applicant have maintained regular communication.

13. The review applicant provided tribunal with copies of 11 money transfers, and the tribunal accepts the review applicant sent the visa applicant financial support, usually in the amount of $100 or $200 between July 2021 and June 2023. The tribunal accepts the review applicant has provided some financial support to the applicants, and accepts that this financial support is limited but has been ongoing since the marriage.

14. The review applicant and the visa applicant provided the Department and the tribunal with several photographs, and after the tribunal hearing, the review applicant provided the dates of his travel to Vietnam after he had met the visa applicant. The visa applicant and review applicant provided the Department with evidence of travel, including a hotel receipt and confirmation of the review applicant’s temporary residence at the applicant’s home in 2018. The tribunal accepts that the review applicant travelled to Vietnam as claimed, and spent time with the applicants.

15. The review applicant had provided the Department with a copy and a translation of the certificate of marriage, which confirmed the review applicant and the visa applicant were married and registered their marriage on 12 March 2019 in Vietnam.

16. The review applicant and the visa applicant provided the Department with a statement of spouse relationship dated November 2019 and two statutory declarations from witnesses in support of the relationship. The tribunal has also considered the written statements and statutory declarations provided to the tribunal, including the statement of the review applicant and the visa applicant both dated 30 January 2024, and the statement of the second named visa applicant dated 31 January 2024. The tribunal has also considered the statement of Le Thi My who is the sister of the visa applicant and declares her knowledge of the relationship and commitment between the review applicant and the visa applicant. The tribunal has considered the statutory declaration of the review applicant’s friend Van Thanh Tran who has spoken to the visa applicant by phone and is aware of the relationship, and the statutory declaration of the review applicant’s friend Thuy Y Nhi Tran, who is aware of the relationship, and who met the visa applicant in 2017. Thuy Nhi Tran gave evidence in the hearing, and stated he was invited to the wedding in Vietnam but he could not go to Vietnam at that time. The witness is aware that the parties chat on FaceTime on the phone and regular basis.

17. The oral evidence in the hearing was consistent that the review applicant travels to Vietnam, and the parties spend time together shopping, eating and travelling and share the expenses. The oral evidence was consistent that the review applicant provides some financial support for the two children of the visa applicant (the second and third named visa applicants).

18. The oral evidence in the hearing was consistent that the parties met at the restaurant Bach Long, that the visa applicant managed. The oral evidence was consistent that this restaurant is now closed, and the visa applicant now operates a different restaurant which is more a lunchtime café.

19. The Department decision record dated 20 October 2020 refers to an interview conducted with the visa applicant.  The tribunal was not provided with a copy of, or notes of, this interview. For this reason, the tribunal gives the reference to the interview in the Department decision record no weight.

    Assessment of the evidence of mutual commitment - the review applicant

20. Prior to the hearing, on 7 February 2024, the tribunal wrote to the review applicant at his nominated representative’s address for correspondence, and advised that the member had considered the submissions provided. The tribunal advised that the review applicant had previously provided information to the Department that both the review applicant and the visa applicant resided at the same address as the previous partners. The tribunal invited the review applicant to provide information supported by evidence as to whether the review applicant and the visa applicant continued to reside with the previous partners, and if not when that arrangement had ceased. The tribunal advised that in relation to the primary visa applicant the Vietnamese household registration would be of assistance. The tribunal advised in relation to the review applicant the electoral roll or other authorised evidence of residence would be of assistance.

21. The tribunal did not receive any response to its request for information or evidence prior to the hearing in response to the letter dated 7 February 2024. The tribunal is satisfied that the review applicant was notified that the issue of the review applicant’s and the visa applicant’s residence and connection with previous partners was relevant to the review.

22. In the hearing the review applicant stated that he resides with his previous partner with whom he was in a de facto relationship and with whom he has a daughter. The review applicant stated that he receives the carer payment for looking after his previous partner. The review applicant stated he cares for the previous partner by taking her to hospital and doctors appointments. The Department had received a statement from the review applicant dated 9 November 2019 entitled “Statement letter to the de facto relationship”, in which the review applicant declared that the de facto relationship with his previous partner M ended in 2005 but he has been her carer since 2014 when he volunteered to take care of M. In the hearing the review applicant stated that M had resided with him for five or six years, but after the tribunal referred to the statement, the review applicant stated it was correct that she had moved into his premises in 2014.

23. It is relevant to note, that the tribunal accepts the review applicant had difficulties with dates and figures during the hearing. For example the review applicant stated his daughter was 19, and then said she was 22 years old, but he could tell the tribunal the year of her birth. The tribunal accepts that the review applicant was not attempting to mislead, but was not confident with dates or figures in his evidence.

24. In the hearing the review applicant stated that he resides with M and his daughter in rented accommodation. He stated he pays $500 a month for rent living in a shared house with others. In answer to a question from the Tribunal the review applicant stated the other people residing in the house are M and his daughter. The review applicant stated that no one else pays the rent, just him. He stated $500 rent is for just one room. The review applicant then stated the bills for the accommodation amounted to $700 per month. The review applicant then stated the rent was $1200 per month, and with utilities was $1500 per month.

25. The tribunal had difficulty understanding the evidence of the review applicant and the changing figures being provided in relation to the rent paid by the review applicant. The review applicant stated the rent was for private residential accommodation and they rented the entire three-bedroom house. The tribunal discussed with the review applicant that the rental figures the review applicant had stated seem to be extraordinarily low. The review applicant stated that M pays for her share of the rent from her benefit. The review applicant stated that the daughter’s share of the rent was paid jointly by himself, and M helps out. The review applicant confirmed that no one else was renting the rooms. The review applicant stated the home was leased through a private arrangement and there was no formal agreement. The review applicant stated that his share of the rent for the house was $1200 per month, and then he said his share was $1200 per fortnight. The review applicant stated that he and M jointly pay the rent but he actually pays the rent by cash to the landlord. The review applicant stated the landlord’s name is Nguyen, Thuy Thu. The tribunal asked the review applicant that if he actually pays the rent, and pays in cash, why could he not tell the tribunal how much he paid and how often he paid. The review applicant stated he paid the landlord in cash every four weeks. The review applicant stated he paid $1200 per fortnight so he would pay about $2000 every four weeks.

26. The tribunal discussed with the review applicant that if his evidence is that he pays the rent in cash to the landlord every four weeks and he cannot tell the Tribunal how much he pays the landlord in cash every four weeks, the Tribunal may conclude the review applicant is not telling the truth and not giving reliable and credible evidence in the hearing.

27. The tribunal accepts that the review applicant may have some difficulty with dates and figures. The tribunal does not accept that the review applicant cannot remember the amount of rent he pays to his landlord every four weeks.

28. The Tribunal has concluded that the review applicant was being evasive in relation to his evidence about the financial arrangements for paying the rent, his financial arrangements with M, and his living arrangements with M.

29. The review applicant told the tribunal that he still resided in the same premises with M, and that his daughter completed her year 12 studies last year. The review applicant stated that his daughter is now studying an online nursing course. The review applicant stated if the visa applicant came to Australia he would rent a separate house, and his daughter would have to look after her mother. The review applicant stated in response to a direct question from the tribunal that it was appropriate that his daughter, despite being so young and commencing her tertiary studies in nursing, should be the carer for her mother.

30. The visa applicant stated in her evidence that the review applicant worked as a carer. The visa applicant stated that he worked as a carer for a friend, whose name was M. The tribunal asked the visa applicant if she was aware of the relationship between the review applicant and M, and the visa applicant stated that yes she did know this relationship, and at first she could not accept it but she understands that he lives with M because of his love for their child.

31. The visa applicant stated that if the visa was granted she would reside in Australia, and they would rent a place, for the review applicant to live with her and her two children. She said ultimately they would look to buy a house in the future and that the review applicant’s daughter would be invited to come and live with them. The visa applicant stated that M’s younger sister had been sponsored to come to Australia as her carer.

32. The inconsistencies in the evidence between the review applicant in the visa applicant was going to be put to the review applicant pursuant to s.359AA of the Act near the end of the hearing. The review applicant stated that he had a headache, and the tribunal was mindful that the hearing had been of some duration. The tribunal agreed to put the information to the review applicant in writing after the hearing.

    Assessment of the evidence of mutual commitment - the visa applicant

33. The relevant dates to be considered include that the review applicant and the visa applicant registered their marriage on 12 March 2019. The application for the visa was lodged on 9 January 2020. The visa applicant provided a decision in relation to the divorce from her first husband, TQV dated 11 September 2017. The visa applicant provided the Department with household registration, which had been recorded on 12 February 2018, and which recorded the householder as TQV, and the three applicants reside at the same address. Beside the address is recorded in brackets “separated household the same house”. The visa applicants provided the Department with Curriculum Vitae in relation to both the second and third named visa applicants, which recorded information in relation to the older visa applicant Tran, Phuong Dong in 2019 as a student of Duy Tan University, and recorded his father’s full name, TQV and residence as the same address as his mother. This document was dated 25 June 2019.

34. In the hearing the review applicant stated that the restaurant Bach Long was owned by the visa applicant and was only under her name and he knew this because she had told him. The review applicant stated that the review applicant was divorced in 2014. When the tribunal discussed with the review applicant that the divorce document of the visa applicant and TQV is dated 2017 the review applicant stated the visa applicant and her first husband were separated in 2014. In answer to a question to clarify what the review applicant meant by separated, the review applicant stated that the visa applicant and her first husband did not live together after 2014. The tribunal discussed with the review applicant the household registration documents which recorded that TQV resided at the same address. The review applicant responded by asking the tribunal to be sympathetic. The tribunal discussed with the review applicant that it was not clear what he meant by that response.

35. The review applicant’s representative brought the tribunal’s attention to the fact that a line had been drawn through the name of the householder, TQV, and submitted that crossing out a name was a method of removing a person from the household registration. The representative submitted that it is a frequent occurrence in Vietnam that new household registrations are not issued in cases of separation. The tribunal discussed with the representative that the visa applicant and her first husband divorced in 2017 and the household registration and curriculum vitae documents are dated in 2018 and 2019, after the date of the divorce. The tribunal discussed that the documents provided to the Department and the tribunal indicate that the relationship between the visa applicant and her first husband may be continuing at the time of the claimed relationship and marriage between the review applicant and the visa applicant. The review applicant stated that their love is true and genuine.

36. The visa applicant told the tribunal in her evidence that she did not own the restaurant Bach Long, and the restaurant was registered in the name of her first husband TQV.

1. The visa applicant told the tribunal in her evidence that she and her first husband had continue to reside at their registered residence after 2014 when their relationship became disrupted. The visa applicant stated that TQV moved out of that address when they legally divorced. The visa applicant stated the household booklet was then changed after the divorce. The Tribunal discussed with the visa applicant the residence of TQV that was recorded on the household registration and the curriculum vitae, which are both dated in the years after the date of the 2017 divorce. The household booklet was changed from the address at Group 10, to the address at Group 12, but the persons residing at that address include the three visa applicants and TQV. The Tribunal explained that the documents the visa applicant had provided all record that her first husband was residing with the visa applicant at the time of her divorce and at the time of her marriage to the review applicant.

2. The visa applicant stated that she and her first husband had decided together that they would record that he was still residing in the same household so that their two sons could go to the same school. The visa applicant stated that when the two children finished school she and TQV decided they would record separate household registration. The visa applicant stated that TQV was removed from her household registration approximately four years ago.

3. The inconsistencies in the evidence between the review applicant and the visa applicant was intended by the tribunal to be put to the review applicant near the end of the hearing pursuant to s.359AA of the Act. However the review applicant stated that he had a headache, and the tribunal was aware of the duration of the hearing, and agreed to put the information to the review applicant in writing after the hearing.

   S.359A information

4. The tribunal sent a letter to the review applicant after the hearing on 26 February 2024 inviting him to comment or respond to information. The tribunal identified particulars of the information as follows:-

   1. In the hearing you stated that the primary visa applicant owned her previous restaurant Vach Long, and that your knowledge was based on information that she had told you. The primary visa applicant stated that the restaurant, Vach Long, was owned by her first husband and was in his name only

   2. In the hearing you stated that your daughter would not live with you and the visa applicants if the visa was granted; you stated it was appropriate that your daughter care for her mother. The primary visa applicant stated that your previous partner (your daughters mother) would be cared for in the future by your previous partner’s sister, who had been granted a carer visa. The primary visa applicant stated that if the partner visa was granted, and after you and she had arranged your own place to live, it was intended that your daughter would also reside with you.

   3. In the hearing you stated, and your representative submitted, that the Vietnamese records were not reliable and that is why the household records and the curriculum vitae record that the primary visa applicant’s first husband was recorded as residing at the same residential address as the primary visa applicant and the visa applicants in documents dated 2018 and 2019. The primary visa applicant gave evidence that she and her first husband had not changed the household registration details by agreement in order that the two sons could attend the same school.

5. The tribunal explained that this information is relevant to the review because it indicated there was inconsistency in the oral evidence of the review applicant and the primary visa applicant, and if the tribunal relies on the inconsistencies in the evidence it may find that the evidence given in support of the claim that the review applicant and the primary visa applicant are in a spousal relationship is not reliable evidence of the relationship. Further the tribunal advised that the particulars of the information are relevant evidence to the review as it indicates that the primary visa applicant was in an ongoing relationship, or had ongoing financial and social commitments with her first husband at the time the review applicant claimed to be in a spousal relationship with the primary visa applicant. Further the tribunal advised that the particulars of the information are relevant to the review as if the tribunal relies on the information it may find that the review applicant had not provided reliable evidence about the ongoing arrangements between the review applicant and the review applicant’s previous partner and the tribunal may find it indicates that the review applicant has an ongoing commitment with his previous partner.

6. The tribunal advised that if it concluded the review applicant had not provided reliable evidence of the spouse relationship with the primary visa applicant, and that either the review applicant or the primary visa applicant had ongoing partner commitments or relationships with their previous partners, the tribunal may conclude that the review applicant and/or the primary visa applicant do not have a mutual commitment to a shared life as a married couple to the exclusion of all others, and/or that the review applicant and the primary visa applicant are not in a genuine and continuing relationship. The tribunal advised that this would be the reason or part of the reason for finding that the review applicant and the primary visa applicant are not in spousal relationship within the meaning of s.5F(2), and for affirming the decision under review.

7. The tribunal invited the review applicant to provide comments or responses to the above information in writing. The comments or responses were requested to be received by 12 March 2024. The tribunal advised that if the review applicant could not provide the written comments or responses by 12 March 2024 that he could request an extension of time in which to provide comments or responses, but that must be received by 12 March 2024 and must state the reason why the extension of time is required. The tribunal also advised that if the tribunal did not receive the review applicant’s comments or responses within the period allowed or as extended, the tribunal may make a decision on the review without taking any further action to obtain the review applicant’s views on the information.

   Responses and comments to the s.359A invitation

8. On 8 March the tribunal received a request for an extension of time for a further 14 days to respond to the invitation to provide comments are responses, in an email from the review applicant’s representative. The representative advised that he had requested an audio recording of the hearing which was conducted on 14 February 2024 and had not yet received the audio recording. The representative also advised that there are statements from neighbours and other parties that the review applicant would like to provide to the tribunal to support the review application, and to attach to the response.

9. The tribunal considered the application for an extension of time on 12 March 2024 and provided its response to the review applicant in an email on 12 March 2024. The Tribunal noted that the request for an extension of time was received on 8 March 2024, which was the last business day before the responses or comments were due (because of the public holiday on Monday, 11 March 2024).

10. The tribunal advised that the review applicant requested an extension of time because he had not received the audio recording of the hearing. The tribunal noted that at the end of the hearing the presiding member decided not to put the particulars of the information to the review applicant pursuant to s.359AA of the Act because it had been a long hearing and the review applicant stated he had headache. For this reason the tribunal put the information to the review applicant in writing after the hearing to allow the review applicant to provide written comments or responses. The tribunal advised that comments or responses to information pursuant to s.359A or s,359AA of the Act are not received only after an applicant has received and / or listened to the audio of the hearing. The tribunal advised that responses and comments to information under s.359A or s.359AA of the Act are invited to specific items of information. The tribunal advised that the letter setting out the particulars of the information and inviting the review applicant’s written comments or responses was sent on 26 February 2024. The particulars of the information are set out in that letter, numbered 1 to 3. The relevance of the information to the review, and the consequences if the tribunal relied on the information were also set out in the letter from the tribunal dated 26 February 2024.

11. The tribunal advised that it does not consider it is necessary that the review applicant received the audio of the hearing prior to providing the written comments or responses to the information as set out in the tribunal’s letter of 26 February 2024. The tribunal confirmed that the review applicant is invited to respond to the information as set out by the tribunal in its letter.

12. The tribunal did note that the request for an extension of time was being considered on the due date, namely 12 March 2024. For this reason the tribunal advised that it would extend the date that the written comments or responses were due until Friday, 15 March 2024. The tribunal confirmed that the extension of time is not granted for 14 days. The tribunal confirmed that the extension is not granted until such time as the review applicant received the audio recording of the hearing.

13. The tribunal also advised that the review applicant had requested an extension of time because the review applicant wished to provide statements from neighbours and other parties to support the review application, and to attach this to the response to the invitation from the tribunal. The tribunal notes that the review applicant had not previously advised of an intention to provide posthearing information (other than the dates of travel to Vietnam which had been previously received). The tribunal advised that the additional information in the form of statements that the review applicant advised he wished to provide does not form part of the written responses and comments to the information in our letter of 26 February 2024, and therefore the consideration of an extension of time does not apply to this information.

14. The tribunal advised that it would consider any post hearing information it received prior to the decision being finalised.

15. The tribunal noted that the hearing was conducted on 14 February 2024, and it considered a month to be reasonable period of time for a review applicant to provide any post hearing submissions in the circumstances of this review.

16. The tribunal did not receive written comments or responses to the invitation to provide comments or responses by the due date of 15 March 2024. The tribunal did receive written comments or responses on 18 March 2024, and as the tribunal had not finalised its decision, the tribunal has decided to consider the written comments or responses even though they were provided after the due date.

17. The tribunal also received further post hearing submissions on 18 March 2024. The Tribunal acknowledges that the attached documents, the statements from M, the two neighbours of the visa applicant and the copy and new translation of the household registration booklet and curriculum vitae of the second and third named visa applicants, are provided as part of the comments and responses to the information. This was not clear from the representative’s request for an extension of time as the documents were to be attached to the responses in support of the application for review. The tribunal considered the information provided as part of the response or comments to the information.  The tribunal also considered the post hearing submissions as part of the total evidence before it to be considered and assessed in the review.

18. The tribunal notes that the request for the audio hearing was processed and forwarded to the review applicant prior to 15 March 2024.

    Assessment of the comments and responses to the information provided pursuant to s.359A of the Act

19. The tribunal accepts the submission that it had misspelt the name of the restaurant managed by the visa applicant, and it is correctly spelt Bach Long, and not Vach Long.

20. The review applicant provided a submission from his representative in response to the invitation to comment or respond to information. The representative submitted that the visa applicant told the review applicant that the restaurant was owned by her, but the restaurant was legally always recorded as owned by her first husband QVT. The representative submitted the visa applicant and QVT had managed the restaurant together and after their relationship broke down the visa applicant managed the restaurant alone. The review applicant’s representative submitted that the visa applicant told the review applicant that she wholly owned the restaurant, in the sense that she was the only one managing the business. The review applicant’s representative submits this is in accordance with Vietnamese culture that when a married couple separate, the wife is often allowed to continue to manage a business on her own.

21. The review applicant’s representative submitted that the review applicant and visa applicant do not plan to live together with the review applicant’s daughter if the visa is granted. The visa applicant in her evidence meant that the daughter would be invited to reside with them once they had purchased their own home in the future.

22. The review applicant’s representative attached a translated statement from M dated 15 March 2024. This statement does not refer to the future for their daughter except to say that if the visa is granted the review applicant will have to take care of the visa applicants and so maybe their daughter will have to take care of her.

23. The review applicant’s representative provided comments or responses in relation to the household registration inconsistencies particularly in relation to the records of the residents of QVT. The review applicant’s representative submits that the records are not reliable because there were errors in the translation into English. The representative submits that the residential addresses can be similar or the same and therefore cannot be relied upon as confirming persons are residing at the same address. The representative provided to statements from neighbours who confirmed the addresses can be recorded as the same.

24. The representative also stated that the conflicting information was a result of misunderstandings on some issues, and also because the hearing had been long and stressful for the parties.

25. The tribunal has taken into account the responses and comments provided in relation to the information. The duration of the hearing was three hours, which the tribunal considers is long but not excessive, and evidence was given by a number of participants during this period of time. However the tribunal has considered that the oral evidence of the review applicant and the visa applicant was substantially consistent.

26. The tribunal accepts that the visa applicant told the review applicant that she owned the restaurant Bach Long, and that she meant by this information that she managed and operated the restaurant. The tribunal does not find the information to be adverse and does not draw any negative conclusion from this evidence.

27. The tribunal accepts that the evidence given in relation to whether there were plans for the review applicant’s daughter to reside with the visa applicants may not be inconsistent. The tribunal accepts that the primary visa applicant gave evidence in relation to long-term plans to purchase a house and stated at that time they may invite the review applicant’s daughter to reside with them. The review applicant gave evidence about immediate plans, that did not include his daughter residing with him and the visa applicant.

28. The tribunal has not received any documents in relation to the visa applicant’s evidence that M’s sister has applied for or been granted, or has been sponsored for a carer visa to become M’s carer.  In her statement dated 15 March 2024, M states she has more choices about who will take care of her but cannot confirm who will raise her in the future. M states she respects the review applicant’s decision to take care of his new wife and her family when she comes to Australia.

29. The tribunal is not satisfied, based on the inconsistent evidence, or the comments or responses provided, that there is credible or reliable evidence that there are clear arrangements for the future care of M.  There is no documentary evidence before the tribunal in the form of medical reports or carer assessment, of the care required by M, or the future proposed plans for her care.

30. The tribunal accepts that the visa applicant and the review applicant may have provided translations of documents that were not completely accurate, particularly in recording the numbers in the residential addresses in the household registration booklet.  The tribunal accepts, based on the evidence in the statements and the submission in the comments and responses that residential addresses recorded on the household registration and the curriculum vitae may be similar or the same in some circumstances. However the issue in the inconsistent information put to the review applicant pursuant to s.359A of the Act is that the review applicant and the visa applicant gave different and inconsistent evidence as to why the visa applicant and her first husband QVT were recorded as living as the same residence. The review applicant and his representative in the hearing and in the responses and comments claim  the visa applicant and her husband are recorded as residing at the same address due of error,(either in the translated documents, or due to the fact the residences are actually different but recorded as the same).  The visa applicant told the tribunal that the recorded residence was correct; she and her first husband QVT had agreed not to change his residential address for the benefit of the two sons attending the same school.

31. The tribunal is satisfied that the visa applicant provided credible evidence when she stated to the tribunal that her relationship with her first husband started to break down in 2014, but he did not leave their residence until after the divorce was finalised. The tribunal is satisfied, after considering the responses and the attached statements, that the visa applicant lives alone with her two children (the second and third named visa applicants) and is separated and divorced from her first husband QVT.

32. The tribunal is satisfied that the visa applicant is aware of the reasons for her first husband being registered as residing with her until the time of her divorce, and accepts she arranged with her first husband to maintain the same registered address so the children could go to the same school. The tribunal is satisfied that the visa applicant and her first husband resided at the same residence until the divorce in September 2017.

33. The analysis of the evidence before the tribunal indicates that the review applicant has given unreliable evidence to the tribunal. The review applicant stated that the primary visa applicant and her first husband had separated and not lived together from 2014. The tribunal has considered the review applicant had difficulty with dates in the hearing. The review applicant did not give evidence with any confusion about this date; he stated the visa applicant and her first husband had lived separately from 2014.  The review applicant’s representative submits the records provided in support of the application are not correct about the residence registration of QVT.  The tribunal does not accept the evidence of the review applicant as reliable, but in circumstances where the tribunal accepts the explanation of the visa applicant, the tribunal gives this inconsistent evidence little weight in the overall analysis.

    Assessment of the additional documents provided in post hearing submissions

1. The tribunal has considered the statement of the visa applicant’s neighbour, Ngo Thi Duyen, who states she attended the wedding ceremony of the review applicant and the visa applicant, she spoke to the review applicant on one occasion and she knows the visa applicant and the visa applicant’s family very well and is aware the review applicant has returned to visit the visa applicant. The tribunal has considered the statement of the visa applicant’s neighbour, Huynh Thi Nu Vuong, who lives close to the visa applicant and sees her daily. The tribunal accepts that this witness also attended the wedding ceremony and is aware of the spousal relationship between the review applicant and the visa applicant. The tribunal accepts the contents of these statements, that the two neighbours attended the wedding ceremony, know of the relationship between the review applicant and the visa applicant, and the first witness has met the review applicant and is aware that he has returned to visit the visa applicant.

2. The tribunal has considered the statement of Nguyen Thi Xuan Mai (M), which is dated 15 March 2024 and the signed and a translated copy was provided to the tribunal by the review applicant after the hearing. M states that she was in a relationship with the review applicant and they broke up at the end of 2014 or early 2015. The review applicant provided a statement to the Department in which he declares that he separated from M in 2005. The review applicant submitted in his statement that in September 2014 he received notification that M was ill and he volunteered to care for her. In the hearing, the review applicant was not certain of the dates, but he confirmed the details in this statement would be correct and that M moved in with him in 2014.

3. The tribunal does not find it is credible that the two parties to the relationship can claim that the relationship between the review applicant and M broke down at the end of 2014 or early 2015 according to M, and that the relationship between the review applicant and M had broken down in 2005 according to the review applicant. Further it is not credible that the review applicant gives written and oral evidence that he invited and allowed M to move back in with him in September 2014 for the benefit of the daughter, and M provides a written statement that the relationship between herself and the review applicant broke down at the end of 2014 or early 2015. The tribunal finds the evidence of the review applicant and M about their relationship, about whether the relationship ceased, about when the relationship ceased, and about when M moved back in with the review applicant is not credible or reliable evidence in this review.

4. The tribunal has noted that in the statement dated 15 March 2024, M refers to the review applicant sponsoring the visa applicant, contacting the visa applicant almost every day, returning back to Vietnam to visit the visa applicant. The tribunal accepts that these facts are correct, and consistent with evidence before the tribunal.

5. The tribunal has assessed the evidence of the review applicant in relation to the payment of rent in its analysis of the relationship between the review applicant and M. The tribunal finds the review applicant did not give reliable or credible evidence in relation to the payment of rent for the accommodation he shares with M and their daughter.

6. The tribunal finds there is inconsistent evidence about future arrangements for the care of M given by the review applicant and the visa applicant, and the other evidence provided by the review applicant to the tribunal.

7. The tribunal has assessed that the review applicant was put on notice that the issue of residence and ongoing relationship with the previous partner of both himself and the visa applicant were live issues in this review. The tribunal has not received any medical evidence in relation to the reason the review applicant claims he needed to provide care for M.

   Overall assessment

8. The tribunal accepts that there is evidence the review applicant and the primary visa applicant are married, their marriage is recognised by friends and family, they spend time together and have travelled together, and they keep in contact with each other.

9. The tribunal is satisfied that the review applicant resides with M, and is registered as her carer. The tribunal has no evidence that any other relative has been sponsored to come as her carer. The tribunal does not accept that the review applicant who has been residing with M for at least 10 years is not committed to her and a relationship with her. The tribunal finds the review applicant has given unreliable and evasive evidence in relation to payment of the household rent, and his financial arrangements with and financial commitments to M. The tribunal does not accept the evidence of the review applicant that he expects his daughter, in her first year of her nursing studies, to become the carer for M. The tribunal does not find the statement provided by M that she is not in an ongoing relationship with the review applicant is credible or reliable for the reasons set out above.

10. As stated above, the tribunal has assessed the written statement of M, and the written and oral evidence of the review applicant, and the substantial discrepancy in relation to when the claim their relationship ceased. The tribunal does not find the statement of M dated 15 March 2024 to be credible or reliable. The tribunal does not find the evidence of the review applicant to be reliable and credible in relation to his ongoing relationship with M. The tribunal has assessed the evidence before it, and is not satisfied that the relationship between M and the review applicant has ceased. The tribunal finds that the evidence indicates that the review applicant has an ongoing commitment and relationship with his first partner, M.

    Are the parties validly married?

11. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The tribunal is satisfied that the primary visa applicant is divorced from her first husband. The tribunal is satisfied based on the registered marriage certificate that the review applicant and the visa applicant were married in Vietnam and the marriage was registered on 12 March 2019. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).

    Are the other requirements for a spouse relationship met?

12. Financial aspects of the relationship: – the tribunal is satisfied that the parties do not jointly own real estate or other assets. The tribunal is satisfied the parties do not have any joint liabilities. The tribunal is satisfied that the parties do not pool their financial resources together, although I accept the review applicant sends financial support to the visa applicants to help support the education of the second and third named visa applicants. There is no evidence before the tribunal that one person in the relationship owes any legal obligation in respect of the other. The tribunal is satisfied that the parties share day-to-day expenses when the review applicant is in Vietnam.

13. The evidence of the financial aspects of the relationship is limited and is not sufficient to indicate that the parties meet any of the requirements for a spousal relationship.

14. Nature of the household: – the tribunal is satisfied that the parties have a limited shared responsibility for the care and support of the visa applicant’s children (the second and third named visa applicants), in the financial support provided by the review applicant. The tribunal satisfied the visa applicant has no responsibility for the review applicant’s daughter. The tribunal is satisfied the parties have resided together either in hotels, or as per the temporary registration in 2018, at the applicants’ residence. The tribunal notes that the review applicant and visa applicant reside in different countries, and therefore do not manage a household, but accepts the review applicant has travelled to Vietnam and has travelled with the applicants. The tribunal is satisfied that the review applicant and the visa applicant shared household responsibilities for housework when they are residing at the same residence.

15. The evidence of the nature of the household is limited due to the fact the parties reside in different countries, but indicates the relationship is genuine and continuing.

16. Social aspects of the relationship: – the tribunal is satisfied that the review applicant and the visa applicant have represented themselves to other people as being married to each other. The tribunal is satisfied that the opinion of the person’s friends and acquaintances is that their relationship is a married relationship and they keep in contact with each other on a regular basis, and the review applicant visits and spends time with the visa applicant. The tribunal is satisfied that the review applicant and visa applicant plan and undertake a joint social activities around the review applicant’s visits to Vietnam, and their regular communication.

17. The evidence of the nature of the social aspects of the relationship is limited, but indicates the relationship is genuine and continuing.

18. Nature of the person’s commitment to each other: – the tribunal is satisfied the parties registered their marriage on 12 March 2019, and had been married for nine months at the time of application, and have been married for five years at the time of decision. The tribunal is satisfied that the parties have resided at the same premises for short limited periods of time when the review applicant visits the visa applicant, due to the fact that they reside in different countries. The tribunal is satisfied that the parties are in regular contact with each other and provide each other with support and companionship. The tribunal is satisfied that the primary visa applicant sees the relationship as long-term. The tribunal is not satisfied that the review applicant sees the relationship as long term, as the tribunal finds the review applicant is in an ongoing relationship with M. The tribunal has assessed the evidence before it, and while it accepts that the review applicant and the primary visa applicant are known to each other, and spend time together, the tribunal is not satisfied that the review applicant is exclusively committed to the visa applicant, because the tribunal finds the review applicant is in an ongoing relationship with M, and has an ongoing commitment to M. For this reason, the tribunal is not satisfied that the review applicant has a mutual commitment to the visa applicant to the exclusion of all others.

19. The evidence of the nature of the persons’ commitment to each other indicates that the review applicant does not have a mutual commitment to a shared life as a married couple to the exclusion of all others with the visa applicant.

20. Conclusions: – the tribunal has carefully assessed the evidence before it, and finds the review applicant and the visa applicant are in an ongoing relationship, in the sense the parties are married, the review applicant has provided some financial support to the visa applicant, the review applicant has travelled to Vietnam and stayed with the applicants and travelled with the applicants, and their married relationship and ongoing communication is recognised and known by friends and relatives. However the tribunal has also analysed that the review applicant has provided some unreliable evidence in the hearing. The tribunal finds that the review applicant has resided with M, who is the mother of his daughter, and his daughter for at least the last 10 years, and is registered as her carer. The tribunal is satisfied that the review applicant is an ongoing and committed relationship with M, and has not provided the tribunal with reliable evidence about this relationship. The tribunal is not satisfied that the review applicant has a mutual commitment to a shared life to the exclusion of all others with the visa applicant.

21. The tribunal has carefully considered all the circumstances of the relationship as required in reg 1.15A(3). The tribunal has concluded that the review applicant and the primary visa applicant are not in a spousal relationship within the meaning of s.5F(2)(b).

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

23. The visa applicant cannot meet the alternative criteria in cl.309.211(3), intention to marry, as the parties are already married.

24. Therefore the primary visa applicant does not meet cl.309.211 and cl.309.221.

    Secondary visa applicants

25. To meet the requirements of cl.309.311, a secondary visa applicant must be a member of the family unit of, and made a combined application with, the person who satisfies the primary criteria in Subdivision 309.21. For the reasons set out above, the primary visa applicant does not satisfy the primary criteria in cl.309.211. Therefore the second and third named visa applicants do meet the requirements of cl.309.311.

26. For the reasons above, the visa applicants do not satisfy the criteria for the grant of the visa.

    DECISION

27. The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.

    Margie Bourke
    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).