Huynh (Migration)

[2023] AATA 1537

Huynh (Migration) [2023] AATA 1537 (10 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Xuan Ngoc Thi Huynh

REPRESENTATIVE:  Mrs Marion Le (MARN: 9256617)

CASE NUMBER:  2201152

HOME AFFAIRS REFERENCE(S):          BCC2015/3861460

MEMBER:Ann Duffield

DATE:10 March 2023

PLACE OF DECISION:  Canberra

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

Statement made on 10 March 2023 at 1:58pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – sponsor deceased – genuine spousal relationship – financial aspects – nature of the household – social aspects – nature of the commitment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cl 801.221

CASES
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 14 January 2022 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 6 December 2019 on the basis of her relationship with her sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 801.221(5) because the sponsor had died, and the delegate was not satisfied that he and the applicant were in a genuine spousal relationship at the time of his death.

4. The applicant appeared before the Tribunal on 15 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence from 11 witnesses at the hearing and also received statutory declarations from many of them. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant and the sponsor were in a genuine, continuing and ongoing spousal relationship as envisaged by the Migration Act at the time of his death in March 2019 in Vietnam.

   BACKGROUND

8. The sponsor was an Australia citizen born in 1926 in Vietnam. He settled in Australia in 1985 and became a citizen. He has declared a previous relationship and has two children from that relationship.

9. The applicant is a citizen of Vietnam born in 1953.

10. The parties claim to have met in around 2005 and continued to see each other at various community functions until finally deciding to marry in October 2015.

11. The sponsor passed away in Vietnam on 19 March 2019.

    Adverse information

12. The department received adverse information about the marriage of the applicant and the sponsor in 2016 and 2018. Both these pieces of information were protected by a s.376 non-disclosure certificate restricting the release of that information. The certificate was provided to the applicant through her adviser and her comments sought on the validity.  The Tribunal informed the applicant of the gist of the comments made which was that the relationship between them was contrived and that she had neglected the health of the sponsor. The allegations were that the applicant did not live with the sponsor but visited a couple of times a week and moved some of her possessions into the house merely to substantiate a claim that they were in a spousal relationship.

13. The applicant’s adviser also provided the Tribunal with a translation of some text messages allegedly sent by one of the sponsor’s grandchildren. These texts are highly inflammatory and accuse the recipient of contriving the marriage between the applicant and the sponsor.

14. The Tribunal notes this information but has given it little weight in the context of the decision before it.

    Whether the parties are in a spouse or de facto relationship

15. Relevantly to this matter, cl 801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who was an Australian citizen and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor was the ‘sponsoring partner’ of the applicant.

16. ‘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 sponsor’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) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

17. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. A copy of the parties’ marriage certificate is on the Department file. 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).

    Death of the sponsor

18. The sponsor passed away whilst he was in Vietnam on 19 March 2019. The applicant can still however satisfy the requirements of cl.801.221 under the provisions of cl.801.221(5) which states that:

    801.221(5) An applicant meets the requirements of this subclause if the applicant:

    (a)is the holder of a Subclass 820 visa; and

    (b) would meet the requirements of subclause (2) or (2A) except that the sponsoring partner has died; and

    (c) Satisfied the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died; and

    (d) has developed close business, cultural or personal ties in Australia.

19. For the following reasons, however, the Tribunal is not satisfied that the applicant meets 801.221(5)(c) and therefore affirms the decision under review.

20. The Tribunal has considered the information provided by the applicant on the department’s file as well as the submissions, information, statutory declarations, and evidence provided by the applicant to the Tribunal through her representative prior to the hearing. The applicant provided a number of statutory declarations including from herself and the following:

    a.Thi Vi-Anh Cao – Ms Cao states that she met the couple in September 2017 and observed the parties together a happily married couple. She states that she learned that the sponsor departed Australia in 2018 and learned later that the sponsor had passed away.

    b.Ha Hoang Vu, the applicant’s brother-in-law states that he met the sponsor in 1995.  He states that he learned that the parties married in 2014 and believes that the marriage was genuine and sincerity. He states that the sponsor entered into the marriage voluntary and denies the allegations made in the adverse information that the marriage was not genuine. He states that he heard that the sponsor departed Australia with one of his granddaughters.

    c.Anh Nguyen states that they have known the sponsor since 2015 and the applicant since 2016. He states that they regularly attended community activities and that the sponsor passed away in 2019.

    d.LeHoa Lam states that she has known the applicant since 2015 and the sponsor since 2016. She states that she knows the parties lived together until March 2018 because she used to pick up the applicant to attend functions. She states that in September 2019 the applicant told her that the sponsor had departed Australia and subsequently passed away.

    e.Bon Thi Le states that they have known the family since 1981 and the sponsor since 1989. They came to know the applicant since 2015 and attended the wedding of the parties. They state that they saw the parties together at various regular community meetings. They say that they learned that the sponsor went to Vietnam in March 2018 and that he returned the unit to government housing and the applicant went to stay with her brother.

    f.Mai Duong states that she has known the family for more than 30 years. She states that she came to know from the applicant that the sponsor’s children and grand children were not happy with their marriage and that his grandchildren kept him in Vietnam. She states that the applicant tried to visit the sponsor in Vietnam but she was not permitted to see him.

    g.Fiona Cuc-Xuan Lam states that she met the applicant in May 2016 and used to pick her up from the home that she shared with the sponsor to take her to outings. She states that the applicant moved from the home they shared in March 2018 and that she came to know of the sponsor’s passing in December 2019.

    h.Gary Ryan writes confirming that the parties lived at the nearby address from October 2015 to March 2018.

    i.Christine Larkin states that she visited the applicant at the home she shared with the sponsor once a week between October 2016 and April 2017.

21. The following people attended the hearing and gave evidence including Dinh Ngoc Thi Huynh, Ha Hoang Vu, Tam Ngoc Huynh, Oanh Thi Tuyet Juynh, LeHoa Lam Anh Ngoc Thi Nguyen, Mai Duong,and Thi Vi-Anh Cao. The applicant’s representative also assisted in the clarification of evidence and made oral submissions during the hearing.

22. After the hearing the applicant through her adviser provided several other documents and information including the following.

    ·Some additional photos of the parties together in 2017

    ·A statutory declaration and annexures from Er-Kai Wang, a solicitor, about elder abuse generally. There is no mention of the applicant or the sponsor.

    ·A copy of DFAT’s consular charter

    ·A copy of a medical certificate for the sponsor dated 18 February 2018

    ·Some text messages received by the applicant’s representative in around 2016 allegedly from the sponsor’s granddaughter

    ·Some photographs of the sponsor’s belongings left behind

    ·A statutory declaration from the applicant

    ·A submission from the President of the Vietnamese Association dated 26 February.

23. The information and evidence are included, where relevant, in the discussion of findings and reasons below.

24. The applicant, through her representative sought additional time to provide new information and sought a copy of information on the Department file which the Tribunal had shown to the applicant at the hearing. The applicant was given until 9 March 2023 to provide additional information or seek an extension of time to do so. At the time of this decision no request was received.

    Were the parties in a spousal relationship

25. The Tribunal has considered the financial aspects of the relationship - including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

26. The parties neither owned nor shared significant assets. The applicant provided copies of a commonwealth bank statement for the period October 2015 to April 2016 addressed to both parties at the house in Rowan Street. A further letter from the Commonwealth Bank dated 27 October 2015 addressed to the applicant at the rowan street address. The applicant has provided no further information about the financial aspects of their relationship post April 2016.

27. The applicant sent the sponsor some money for his birthday in 2018 and at a separate time in 2019. Some of that money was returned by the sponsor’s family.

28. The sponsor relinquished his housing commission home in March 2018 and there is no other evidence before the Tribunal showing the financial arrangements of the parties or how such arrangements support a finding that their marriage is ongoing.

29. The Tribunal is not satisfied that the financial aspects of the parties’ relationship support a finding that they were in a continuing spousal relationship or that they were living together at the time of the sponsor’s passing in March 2019.

30. The Tribunal has considered the nature of the household - including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

31. The applicant provided a copy of the Department of Human Services Centrelink letter to the applicant at the Rowan Street address, also dated March 2016. Also, a certified copy of the Income Confirmation Authority issued to the sponsor and the applicant dated March 2016. A number of other notifications also provided but none dated after 2016.

32. The Tribunal accepts that the applicant and the sponsor resided together at a Housing Commission flat prior to the sponsor departing Australia in February 2018. He did not return to that flat and informed the Housing Commission Authority that he was relinquishing that apartment in March 2018. The applicant moved out and handed in the keys on 18 March 2018. They did not see each other, speak to each other or live with each other after the sponsor departed Australia in February 2018.

33. The applicant and her adviser told the Tribunal that there was clearly “foul play” in relation to the return of the house. The applicant said that when she went to the Housing Commission office in March to see if she could remain in the flat, she was told that the sponsor was seen with two girls “in a hurry”. She seemed to be suggesting again that the sponsor was being manipulated by others. There is no evidence to support this claim, and, in any case, it is not relevant to the fact that the sponsor relinquished his Housing Commission flat and departed Australia and made no further provision or attempt to establish a shared household with the applicant. He and the sponsor did not contact each other from that time until the day he died and for whatever reason, the relationship appears to have ended, at least in the eyes of the sponsor.

34. The Tribunal is not satisfied that the nature of the parties’ household supports a finding that they were living together, or shared a household, or were in an ongoing spousal relationship at the time of the sponsor’s passing in March 2019.

35. The Tribunal has considered the social aspects of the relationship - including whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

36. The Tribunal was provided with a number of photographs of the parties over a period of many years showing them together and with others at a variety of events. None of the photographs were dated from 2018 onwards.

37. The Tribunal has carefully considered a number of statutory declarations from friends and family of the applicant attesting to the fact that the parties were married and lived together until March 2018. The Tribunal gives all these statements some positive weight supporting the existence of a genuine relationship prior to February 2018.

38. The Tribunal also received oral evidence from many of the parties’ friends at the Tribunal hearing. A full list is of witnesses, including their relationship to one or both of the parties, is on the Tribunal’s file. All told the Tribunal that the sponsor and the applicant were a loving couple who participated in community events and lived together in a genuine marriage.

39. The Tribunal received a letter from LeHoa Lam after the hearing. Ms Lam also gave oral evidence at the Tribunal hearing. Ms Lam maintains that the sponsor was taken away against his will and that the motives were that the sponsor’s family wanted money and that they were ashamed of the sponsor’s marriage to the applicant. She states that the sponsor’s granddaughters wanted to break up the marriage. She has provided no evidence to support these claims, and, in any case, she has not disputed the fact that the sponsor departed Australia in February 2018, that he has subsequently died and that the applicant and the sponsor had no further contact after his departure from Australia in February 2018.

40. The Tribunal accepts the parties were in a spousal relationship and lived together prior to his departure from Australia in February 2018.

41. However, none of the applicant’s witnesses, or indeed the applicant herself had seen or spoken to the sponsor after February 2018 and many of the applicant’s witnesses had not seen him in the several months prior to his departure. None claimed that the sponsor had told any of them that he was departing or had departed Australia, and none were contacted by him upon his brief return in June 2018. Equally none, not even the applicant, were informed, at the time, of his passing in March 2019.

42. The Tribunal is not satisfied that the social aspects of the parties’ relationship support a finding that they were in a genuine spousal relationship at the time of the sponsor’s passing in March 2019.

43. The Tribunal has considered the nature of persons' commitment to each other - including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

44. The sponsor departed Australia in February 2018 and returned for one month in June 2018 before departing Australia permanently. During that time, he did not seek to contact the sponsor and she did not know that he had returned to Australia for a month in 2018.

45. The oral evidence at the hearing and the written submissions provided to the Tribunal confirm that the sponsor departed Australia in February 2018.

46. During the hearing the applicant and her brother told the Tribunal that they had tried to contact the sponsor in Vietnam where he was staying with his son. Both claim they were told the sponsor did not want to speak to them. The applicant’s brother told the Tribunal that he saw the sponsor when he went to the home of the sponsor’s son in Vietnam, but he was turned away. The sponsor also claims she went to Vietnam in April 2018 to try and find the sponsor and rang the sponsor’s son to see if she could talk to him. She returned to Vietnam in 2019 and claims that she again tried to contact the sponsor through his family. There is no evidence of the applicant’s call to the family prior to September 2019 when she did call to seek information about his death. Despite the attempts at contact, it remains a fact that the sponsor and the applicant did not speak to or see each other after February 2018 and did not again share a home or a household.

47. The Tribunal put to the applicant that the only evidence it had that she contacted the sponsor’s family was in September 2019, after she was notified of the sponsor’s death and no evidence that she contacted him at any time prior to that time. The applicant said that she didn’t have the phone records.

1. The Tribunal notes that at the time of these alleged calls and visits to the sponsor’s son in Vietnam around March and April 2018, the sponsor’s passenger card indicates that he retuned to Australia from the USA and had spent most of his time away in the USA.

2. Asked why she didn’t manage to make contact the sponsor during the thirteen months between his departure from Australia and his death, the applicant told the Tribunal that the sponsor “couldn’t do anything” without her. That he did not have a mobile phone because he was deaf, and they had no means of contacting each other. The Tribunal asked how they communicated with each other whilst they were together, and she said that he didn’t have a mobile phone or landline because he was deaf and therefore did not communicate via SMS. Asked if they used to email the applicant said they did not. She said that they were always together and so didn’t need to contact each other. Asked how other people including the sponsor’s family and friends contacted him she stated that she had mobile phone.

3. The applicant and other witnesses told the Tribunal that they believed that the sponsor had been taken to Vietnam against his will. It was variously claimed that the motivation for doing so was to obtain money from other potential spouses the sponsor could marry. The Tribunal put to the applicant that the sponsor was already married and around 95 years of age. The Tribunal put to the applicant that it did not appear that the sponsor’s granddaughters had any motivation for abducting him and taking him to Vietnam. The sponsor was on a pension which ceased at the time of his death in March 2019 and he had no assets. It seems to the Tribunal that even if this was a motivation, which the Tribunal does not accept, there would be no reason to take the sponsor to Vietnam against his will.

4. The applicant and others also put to the Tribunal that another motivation was the shame that the sponsor’s marriage brought upon the family and that was why the sponsor’s granddaughters abducted him and sought to keep him away from the applicant. The “shame” would apparently arise because of the age of the sponsor and the age difference between him and the applicant.

5. Again, the Tribunal does not accept that this would be a motivation to abduct the sponsor. The so called “shame” would not be erased by abducting the sponsor back to Vietnam. He did, after all, marry the sponsor and was still married to her. The “shame”, thereby, remained, even more so in Vietnam. It seems to the Tribunal that the “shame” would have been lessened if the sponsor remained in Australia. Returning the sponsor, unwillingly or otherwise to Vietnam, would surely have made the “shame” far more evident. Be that as it may, the Tribunal is not required to make a finding about this matter. For whatever reason, the applicant and the sponsor were not in a spousal relationship from the time of his departure in February 2018 to his death in March 2019.

6. The applicant told the Tribunal that she reported the sponsor missing to the Gungahlin and Belconnen police station around 6 March 2018 and three days later they were told that her that he had gone to Vietnam. No further action was taken by the applicant or the police.

7. The applicant through her representative provided the Tribunal with some information about “elder abuse” and indicated that it was possible that the sponsor was being abused by his granddaughters.  The Tribunal put to the parties that there was no evidence of that and in any case, given that the applicant had told the Tribunal how she controlled all his social and family contacts and his movements, it could equally be the case that she could be accused of the same thing. This was denied. The applicant, through her adviser told the Tribunal that the sponsor was very much his own person. The Tribunal put to her that if the sponsor was competent of making his own decisions, then it was entirely possible that he made the decision to travel to Vietnam and leave the applicant of his own volition.

8. The sponsor passed away in Vietnam in March 2019. The sponsor has admitted, and all her witnesses confirmed that the applicant and the sponsor had not seen each other, lived with each other or communicated with each, since the sponsor departed Australia in February 2018. Many of the witnesses at the Tribunal hearing told the Tribunal that they were not aware that the sponsor had departed Australia until they found out about the sponsor’s death in 2019 and 2020. The applicant herself only found out about the death of the sponsor in September 2019. She was not informed by the Department of Foreign Affairs. She said that the sponsor’s granddaughter notified DFAT of the sponsor’s passing. The Tribunal suggested to the applicant that she did not appear to be listed as the sponsor’s next of kin, otherwise she would have been informed. She said that his granddaughter told DFAT that she would tell everyone. The applicant herself was only notified of the sponsor’s death by the Department of Home Affairs in relation to her application.

9. In relation to the claims of the applicant and some of her witnesses that the sponsor departed Australia, remained away from Australia, did not provide for a joint household after his departure and did not contact the applicant since his departure in February 2018, because he was being subject to elder abuse, or alternatively that he was kidnapped or abducted, is not supported by any evidence. It is unhelpful speculation, and not relevant to the question before the Tribunal.

10. The Tribunal is not satisfied that the applicant and the sponsor had a mutual commitment to a shared life together to the exclusion of all others or that they were not living separately and apart. The Tribunal is not satisfied that the nature of the parties’ commitment supports a finding that they were in a genuine and continuing spousal relationship.

11. The question before the Tribunal is whether the applicant and the sponsor were in a spousal relationship envisaged by the Migration Act at the time of the sponsor’s death in March 2019 or that the applicant would have continued to be the spouse of the sponsoring partner had he not died. For the reasons above, the Tribunal is not satisfied that at the time of the sponsor’s death he and the applicant were in a continuing spousal relationship or that they would have continued to be in such a relationship had he not passed away.

    CONCLUSION

12. Given these findings the Tribunal is not satisfied that the requirements of s 5F(2) were met at the time of this decision. Therefore, the applicant does not meet cl 801.221(5)(c).

13. The applicant therefore does not meet the requirements of cl.801.221.

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

    DECISION

15. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

    Ann Duffield
    Senior Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)any joint ownership of real estate or other major assets; and

    (ii)any joint liabilities; and

    (iii)the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)the basis of any sharing of day to day household expenses; and

    (b)the nature of the household, including:

    (i)any joint responsibility for the care and support of children; and

    (ii)the living arrangements of the persons; and

    (iii)any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)whether the persons represent themselves to other people as being married to each other; and

    (ii)the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)the duration of the relationship; and

    (ii)the length of time during which the persons have lived together; and

    (iii)the degree of companionship and emotional support that the persons draw from each other; and

    (iv)whether the persons see the relationship as a long term one.

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