Huynh (Migration)

[2022] AATA 2631

Huynh (Migration) [2022] AATA 2631 (8 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Hoa Huynh

VISA APPLICANTS:  Mr Van Tran
Master Minh Vu Tran

REPRESENTATIVE:  Ms Anne Nguyen

CASE NUMBER:  1816708

DIBP REFERENCE(S):  BCC2017/1916954

MEMBER:David Crawshay

DATE:8 April 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 08 April 2022 at 1:07pm

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – the limited documentary evidence of communications – no documentary evidence of communications beyond 2018 – lack of evidence demonstrating the degree of companionship and emotional support – not a genuine spousal relationship – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, Schedule 2, cls 309.211, 309.321

CASES
He v MIBP[2017] FCAFC 206

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 April 2018 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 30 May 2017 on the basis of her relationship with the sponsor, the review applicant. The review applicant and visa applicant will hereafter be collectively referred to as “the parties”. 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. In this matter, the second-named visa applicant has applied for the visa on the basis of being a secondary applicant as the son of the visa applicant.

3. The delegate refused to grant the visa to the visa applicant on the basis that the visa applicant did not satisfy cl.309.211(2). Specifically, the delegate was not satisfied that the visa applicant was the spouse of the review applicant at the time of application. The delegate also refused the visa in respect of the second-named visa applicant because he was not able to meet cl.309.321 by virtue of being a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 309 visa. A copy of the delegate’s decision was provided to the Tribunal by the review applicant.

4. The review applicant appeared before the Tribunal on 23 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and from two other witnesses – Ms Thi Dang Gai and Mr Joseph Thanh Pham. The hearing was conducted with the assistance of an interpreter of the Vietnamese and English languages. It was conducted remotely by means of Microsoft Teams video.

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

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

   BACKGROUND

7. The review applicant is an Australian citizen. Her previous marriage ended in divorced in 2004. She has three children.

8. The visa applicant is a citizen of Vietnam. His ex-spouse died in 2015. He has two children, one of whom is the second-named applicant.

9. The parties claim to have first met over the telephone in March 2016 through the introduction of a mutual acquaintance, the aforementioned Ms  Gai. The parties then claim that the visa applicant proposed to the review applicant in June 2016.

10. On 4 March 2017, the review applicant travelled to Vietnam and the parties applied for marriage registration on 9 March 2017. They claim to have then held their wedding on 18 March 2017. They signed their marriage certificate on 30 March 2017, before the review applicant returned to Australia on 11 April 2017.

11. The visa application was lodged on 30 May 2017 but this application was refused on 16 April 2018. The current review was lodged on 7 June 2018

12. On 19 November 2018, the review applicant travelled to Vietnam where the parties claim that they stayed together in parts of Vietnam and South-East Asia. The review applicant returned on 12 December 2018.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the visa applicant was the spouse of the review applicant at the time of application and whether he continues to be her spouse at the time of this decision.

    Whether the parties are in a spouse or de facto relationship

14. Clause 309.211(2) and 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.

15. “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), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

16. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal has sighted a copy of a certificate of marriage with date of registration of 30 May 2017. The certificate listed the place of marriage registration as the People’s Committee of Phu Vang district, Thua Thien Hue province. It accepts that the document is genuine and that the parties were free to marry each other. 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

17. The Tribunal asked the review applicant to confirm that the parties did not have any joint ownership of real estate or other assets and she said that that was correct. She told it that the parties do not have any joint liabilities.

18. The review applicant told the Tribunal that she has remitted sums of money to the visa applicant – which she described as $100 to $200 from time-to-time. When asked what the visa applicant uses the money for, she answered that he buys groceries and food, and uses the payment to pay for expenses for his family. She told it that the visa applicant is successful in his business of buying and selling seafood. She said that he is not demanding money but she sends it over for him and his children. When asked what he does with the money remitted, the visa applicant replied that he does not use it for much – just to buy gift or presents.

19. The review applicant told the Tribunal that the parties do not owe each other legal obligations. Finally, and in terms of the basis of any sharing of day-to-day household expenses, the review applicant said that she sends the visa applicant $100 to $200 to buy things for his children. The visa applicant said that both of the parties spend money together.

20. The Tribunal has considered documentary evidence on the Department and Tribunal files. It notes the presence of money transfer receipts that show an overall sum $2,200 being sent in 12 separate transfers over a period from April 2017 to November 2021. It has considered a letter dated 22 November 2021 written by the review applicant’s representative wherein it was stated that the parties jointly pool their financial resources when together in Vietnam and that they jointly financed their wedding. The letter sought to explain the infrequent money transfers by reference to the review applicant’s situation as someone on the pension and by reference to the COVID-19 pandemic.

21. The Tribunal has considered the above evidence. It finds that there is no evidence that the parties have any joint ownership of real estate or other assets, any joint liabilities or owe any legal obligations in respect of the other. This factor is given no weight. It finds that the review applicant has remitted at least $2,200 to the visa applicant during a period of over four-and-a-half years. It has considered that this is not an especially great amount, although it has also considered that the visa applicant is claimed to be successful in his job and the review applicant on a pension. Based on the evidence of the parties, the Tribunal accepts that these transfers are mainly used for presents or gifts, some to the visa applicant’s children. This evidence is not indicative of a pooling of the parties’ financial resources, and so is given little weight. Finally, the Tribunal finds that there is little evidence to evidence the sharing of day-to-day household expenses beyond the remittances mentioned above. While claims are made in the letter of 22 November 2021 about jointly pooling their resources when in Vietnam, and about jointly financing their wedding, there is no evidence to substantiate these claims. This evidence is given very little weight as a result.

22. Based on the evidence and the findings made, the Tribunal is not satisfied that the evidence of the financial aspects of the relationship indicates that the parties have been in a genuine and continuing relationship at the time of application and at the time of this decision.

    Nature of the household

23. The Tribunal asked the parties at hearing about the care and support of their children. The review applicant spoke in terms of the care that she will give when the parties are reunited. She said that if the visa applicant is allowed to travel to Australia, then he can take care of the children. She said that there is no man in the family and she feels lonely and scared. The visa applicant said that they both look after the children.

24. The Tribunal asked the review applicant about the parties’ living arrangements, and she answered that they will all live under the same roof if the visa applicant is granted the visa. It asked the review applicant how many times she had been over to Vietnam to see the visa applicant, and she replied that it was twice. She said that she did not remember the first time, but that she arrived back on 18 April the second time. She did not nominate a year. When asked about the living arrangements during the trips, the review applicant said that she stayed with the visa applicant and his two children at his house, where they cooked together and had meals. She said that they invited other siblings to join.

25. The Tribunal asked about when the review applicant last spoke to the visa applicant, and she replied that it was on 4 March 2017. The Tribunal repeated its question, sensing that the review applicant misheard it, and she replied that the last time was 19 July 2021. It confirmed with her that this was the date and she confirmed the date. It asked her whether this was for a special occasion or was just for a general conversation, and she replied that she often calls the visa applicant to talk to him. The Tribunal put to the review applicant that she had said that she last spoke to the visa applicant four months ago, and she replied with hesitation that she wished to correct herself and that it was a month ago at the end of October 2021. When it suggested that she hesitated in giving her answer, she replied that she was speaking with a “middle” Vietnam accent and it is difficult to pronounce clearly. When it was suggested that the dates she had given were clearly put, she replied that sometimes she is forgetful.

26. When asked why their communication was not more regular, the visa applicant said that it was because of the poor quality of the transmission and electricity outages. She said that she sometimes needs to make several attempts before the parties are able to talk to each other. The Tribunal questioned why the parties would need electricity if they were communicating through Viber (which she confirmed was a medium of communication as well as direct telephone calls), and she replied that where there is an electricity outage they are not able to communicate over the telephone. When the Tribunal put to her that this did not explain why the parties had not communicated in over three weeks, the review applicant paused for a period before replying that she called the visa applicant that morning. When asked why she had changed her answer, she said that she sometimes does not hear the questions clearly.

27. When asked how often the parties speak to each other, the visa applicant said that sometimes they would speak on two or three days-in-a-row, sometimes once-a-week and sometimes once-a-month. When asked about the last time the parties spoke to each other, the visa applicant said that he could not remember before then saying that it was three days ago.

28. After both parties had given their evidence in relation to their communications, the Tribunal put a perceived inconsistency to the review applicant, being that she had, eventually, said that the parties last spoke on the morning of the hearing whereas the visa applicant said that it was three days ago. The review applicant said that she suffers from poor memory and is forgetful.

29. In terms of the sharing of housework, the review applicant told the Tribunal that they tidied up after meals and had happy conversations with each other.

30. The Tribunal has considered documentary evidence on the files. It notes the presence of a document dated 30 November 2018 that purports to show the review applicant staying at the visa applicant’s address in Phu Hai from 19 November 2018 to 11 December 2018. It notes that, according to the delegate’s decision, a similar document was submitted for the period from 4 March 2017 to 7 April 2017. It also notes that photographs and travel documents on the file show the parties on holidays in Singapore and Malaysia and in other parts of Vietnam.

31. The Tribunal has also seen some evidence of communications between the parties, comprising two statements from the review applicant’s mobile telephone company that show some calls being made during March and July 2018 and a series of screenshots of text messages in a language other than English from “Yen Em” in 2017 and 2018. In the representative’s letter of 22 November 2021, the representative stated that the parties used various methods of communications ranging from calling cards and telephone calls through the review applicant’s service provider and by social media applications.

32. There is no documentary evidence, however, to substantiate these claims and there is no documentary evidence of the parties’ communications from more recently

33. Finally, the Tribunal has considered claims made in the representative’s letter of 22 November 2021 that the review applicant stayed with the visa applicant on the two occasions she travelled Vietnam, that there was a “mutual responsibility” for chores and upkeep, and that the review applicant would tend to do more household chores because she had more time on her hands.

34. The Tribunal makes the following findings based on the evidence. It finds that there is little evidence, and very little if any documentary evidence, to show that the parties have a role in the care and support of each other’s children. This factor is given very little weight.

35. The Tribunal finds that the parties stayed with each in March and April 2017 and in November and December 2018 when they stayed at the visa applicant’s address in Vietnam and in other parts of South-East Asia on holidays. However, there is little if any evidence to indicate that their living arrangements were commensurate with those of a married couple. This includes evidence about whether they had any joint responsibility for the care and support of children such as, in this case, the visa applicant’s children and the second-named visa applicant in particular given that his plans to travel to Australia. In this regard, the Tribunal finds the evidence given by the parties is general at best and, in the case of the review applicant, focussed on what will happen if the visa applicants are able to come to Australia and not on what she has done already. The Tribunal accords this evidence limited weight.

36. Furthermore, the limited documentary evidence of communications – both in terms of the frequency and content and especially the complete lack thereof for the period after 2018 – causes the Tribunal to not be satisfied that the parties were able to maintain a common household during the times when they were not together in the one country. It has particular concerns about the frequency of the communications in light of the answers given to its questions at hearing – firstly, it finds implausible the claim made by the review applicant about not being able to communicate via a mobile telephone application (Viber) because of a lack of electricity; secondly, it notes the inconsistency between the parties about when they last spoke to each other, and does not believe that this can be explained by reference to the review applicant’s memory loss. In relation to the latter, the Tribunal has not been provided with any documentary evidence to substantiate any memory loss on the part of the review applicant, and in any case it considers that she would be likely to remember events from recently and particularly from that day. The Tribunal considers that evidence of the parties’ communications is important where they have been unable to see each other because of the ongoing COVID-19 pandemic which the review applicant cited in her testimony. However, given the limited documentary evidence of communications, and in light of the concerns stemming from the review applicant’s testimony at hearing, this matter is given little weight.

37. Lastly, the Tribunal accepts that the parties may have engaged in some sharing of chores when they were staying together in late-2018. This evidence is given some weight.

38. Taken together, while the evidence of the nature of the household may demonstrate that the parties stayed together on two occasions in Vietnam and other parts of South-East Asia, it does not demonstrate that the parties have been living together, or not living separately and apart on a permanent basis, or that their relationship has been genuine and continuing at, the time of application or the time of this decision.

    Social aspects of the relationship

39. At hearing, the review applicant told the Tribunal that more than 300 people attended the parties’ wedding – made up of friends and relatives from both sides of the family. She said that her biological uncle attended, along with a sister and brother of hers and their spouses. From the visa applicant’s side, she said that his eldest sister attended.

40. Both parties told the Tribunal that the review applicant had been introduced to all of the visa applicant’s siblings and to his uncle and maternal grandmother.

41. The review applicant was asked about the opinion of others about the parties’ relationship, and she replied that they are happy and congratulate the parties on their relationship.

1. At hearing, the Tribunal questioned the two witnesses, Ms Gai and Mr Pham. When asked why she considered the parties’ relationship to be genuine, Ms Gai said that the parties talk to each other very affectionately. She said that during visits to the review applicant’s place, she sees the review applicant talking to the visa applicant. In answering the same question, Mr Pham told the Tribunal that he meets the review applicant on the street or sometimes she telephones him and says she needs “heavenly support” for the application. He said that he sometimes notices the visa applicant ringing her from Vietnam. He said the visa applicant suffers from unhappiness and loneliness and that she needs someone to take care of her.

2. In terms of joint social activities, the review applicant gave evidence that she was taken by the visa applicant to visit friends and family members and she was introduced as his wife. She said that they organised a party for his family members, but when she was asked when this happened, she said that it was on her last trip to Vietnam “in 2017” (she said that she returned on 4 November 2017 but then changed her answer to 1 April 2017). The Tribunal at this point put its concern to her that she had given two answers about when she returned, none of which was correct. The review applicant told it that she is forgetful. The review applicant told the Tribunal that the parties and the visa applicant’s two children went to Da Nang after the parties were married, as well as going sightseeing in Hue. He said that the parties went to Singapore and Malaysia on the review applicant’s second trip.

3. The Tribunal notes documentary evidence in the form of photographs of the parties. These photographs show the parties in a variety of settings, some of which are social, as well as on holidays and at their wedding which was a substantial gathering. Again, as above, travel documents show that the parties made trips to places inside Vietnam as well as to Singapore and Malaysia.

4. The visa applicant stated in a statement dated 10 April 2017 that the parties attended gatherings such as wedding and engagement parties in Vietnam. These claims are repeated in the representative’s letter of 21 November 2021.

5. Based on the evidence, the Tribunal makes the following findings. It finds that the parties have represented themselves to numerous people in Vietnam as being married to each other. The Tribunal accords this evidence weight.

6. The Tribunal finds that there is very little evidence that reveals the opinions of the parties’ friends and acquaintances about the nature of their relationship, including no letters or declarations from third parties attesting to its genuineness. It notes the testimony of the two witnesses at hearing. However, this evidence is general in nature and offers little insight into why the witnesses consider the parties’ relationship to be genuine and continuing beyond the general observation that they talk to each other on the telephone – something of which there is already some, albeit limited, evidence. This matter is given very little weight.

7. Finally, the Tribunal accepts that the parties have planned and undertaken joint social activities such as parties and holidays. This evidence is given weight.

8. The Tribunal has considered the evidence of the social aspects of the relationship. It has considered that there is some evidence to demonstrate that the parties have represented themselves to people in Vietnam and have planned and undertaken some joint social activities. However, it has weighed this evidence against evidence, or more accurately a lack of evidence, of the opinions of friends and acquaintances about the nature of their relationship, including whether other people consider it to be genuine. Therefore, while the Tribunal gives weight to the social aspects of the relationship as being indicative of a genuine and continuing relationship, this weight is diminished in light of the dearth of information of recognition.

   Nature of the parties’ commitment to each other

9. The Tribunal asked the review applicant how she and the visa applicant met, and she said that they met through a friend called Ms Gai. When asked the date when Ms Gai introduced her to the visa applicant, she said that she did not remember but that it was in 2016. The review applicant was asked how she knew Ms Gai, and she replied that their houses are about three minutes on-foot from each other. When the Tribunal put to her that it had read elsewhere that they were neighbours, the review applicant said that in Australia she lived near Ms Gai but said that Ms Gai was a neighbour of the visa applicant in Vietnam.

10. The review applicant was asked how she met Ms Gai, she said that when Ms Gai got married, her husband told her on the telephone and she went and visited her at her property. When asked to clarify the identity of the person whom she identified as “her husband”, the review applicant answered that it was the visa applicant who told her. When asked the date that Ms Gai came to Australia, the review applicant replied that she did not recall the exact date but that it was 2014.

11. Later in the hearing, the Tribunal put to the review applicant that she had said in her testimony that she met Ms Gai through the visa applicant, but that in other documents, and indeed earlier on in the hearing, she said that she had met the visa applicant through Ms Gai. The review applicant told it that the truth was that the visa applicant told her that Ms Gai got married with someone in Australia and that after he provided her with the details she went to visit Ms Gai.

12. Under questioning at hearing, the visa applicant told the Tribunal that Ms Gai introduced the parties to each other. He said that Ms Gai used to live in his neighbourhood and now lives quite near to the review applicant. He said that Ms Gai told the review applicant about him and about how she wanted to introduce the parties to each other. When questioned, the visa applicant said that he did not know how the review applicant met Ms Gai.

13. In other written evidence the parties stated that they met in 2016. For example, in the statement dated 10 April 2017, the visa applicant stated as follows:

    On March 25, 2016, Gai introduced her friend, Huynh Thi Hoa to me. Hoa is living in Australia. I agreed to make friend with Hoa. Gai gave me Hoa's phone number. On March 27, 2016, Hoa called me and talked to me as friends.

14. Elsewhere, in the representative’s letter of 22 November 2021, it was stated that

    the parties were first introduced to one another through a common friend, Ms Gai. The RA contacted the PVA [primary visa applicant] on the 27^th of March 2016 and they were acquainted. They became engaged on 7^th of June 2016, physically met for the first time on 4^th of March 2017 and registered their marriage on 30^th of March 2017.

15. The Tribunal has considered the evidence in front of it, including the above evidence and testimony. Based on the clear inconsistency revealed by the review applicant’s testimony, which is detailed in paragraph ‎46 above, it has real concerns about the credibility of evidence concerning how the review applicant met Ms Gai. This is a crucial detail in the claimed inception and development of the parties’ relationship, as Ms Gai is claimed to be the person who connected the parties with each other in March 2016. Moreover, the Tribunal does not consider that the review applicant’s explanation does, in fact, do anything to explain the inconsistency but instead reiterates her claim that she met Ms Gai through the visa applicant – a claim that goes fundamentally against all other written and oral evidence which asserts the opposite. These credibility concerns, coupled with the absence of any documentary evidence that would substantiate the claimed details of the inception and development of the parties’ relationship, cause the Tribunal to not be satisfied that they met as claimed in March 2016. It finds that the most that can be said about the inception and development of the parties’ claimed relationship is that they met by the time that they were married in March 2017. This aspect is given very little weight.

16. In terms of the period of time that the parties have been living together, the Tribunal has found above that they stayed under the one roof in Vietnam and other countries in South-East Asia in March/April 2017 and November/December 2018 when the review applicant travelled there. This aspect is given some weight.

17. When asked about the degree of companionship and emotional support the parties draw from each other, the review applicant said that the parties live together whenever she returns to Vietnam. She said that they talk about things going on in their lives and their children.  When asked the same question, the visa applicant said that he wanted to care for the review applicant. Based on this answer, it put to the visa applicant that there are specific visas for carers that do not involve the parties being in a spousal relationship, and asked him what differentiated this relationship from a carer relationship. He replied that, as the review applicant’s husband, he will take care of her during sickness and when healthy and will go out and work to make a living.

18. The Tribunal asked the parties about details of each other’s lives. When asked about whether the visa applicant has any medical issues, the review applicant said that he is in perfectly good health. When asked about his work, she replied that he is a businessman who buys and sells seafood. The visa applicant said that the review applicant had a traffic accident and suffers from pain to the back of her head. When asked what medications she was taking, he said that she was taking medications for her pain and stops these medications when the pain goes away.

19. The Tribunal has considered the above evidence about the degree of companionship and emotional support that the parties draw from each other. It has had regard to the visa applicant’s comments about caring for the review applicant but does not consider them to be adverse. Caring for a spouse, after all, is a function of being in a married relationship, and so stating a desire to care for one’s wife is not an indication, by itself, of a carer-caree relationship instead of a spousal relationship.

20. However, and having said this, other evidence causes the Tribunal concerns. The communications records, which were dealt with under the heading of “Nature of the household” above, indicate that the parties have been communicating with each other infrequently, and there is no documentary evidence of communications beyond 2018. Additionally, while two greeting cards were submitted from “Tran Van”, their contents are in a language other than English and the Tribunal is unable to ascertain what was written.

21. While the Tribunal notes evidence given by the parties at hearing about their relationship, it considers the content of this evidence to be superficial at best. On the basis of their claims to have been in a relationship of more-than-five years, it would have expected the parties to have given more fulsome responses when describing the degree of companionship and emotional support that they draw from each than what was given at hearing – in the case of the visa applicant, his desire to care for the review applicant; in the case of the review applicant, the fact that, when she returns to Vietnam, the parties live together and talk about matters in their lives and their children. In this regard, other written evidence does not appear to assist either. The visa applicant’s statement of 10 April 2017 – which is the only piece of written evidence on the Department and Tribunal files written by either of the parties that deals with their relationship – is mainly a summary of events in the parties’ relationship and contains general statements about their communications with each other, their previous “lack of love” and their love and understanding of each other.

22. The overall lack of evidence demonstrating the degree of companionship and emotional support that the parties draw from each other leads the Tribunal to have concerns about the overall basis of their relationship. This aspect is accorded very little weight.

23. In terms of whether the parties view their relationship as a long-term one, the Tribunal asked whether they had discussed the visa applicant’s business. The review applicant said that they had not spoken about that but added that if he were to travel to Australia then the business would be transferred to his younger sister whom she referred to as “Tran Thi Thu”, who has excellent experience in the seafood business and has been a businesswoman. When asked a similar question, the visa applicant said that he will hand the business over to his younger sister Tran Thi Thu Uot (originally heard as “Uoc”) who was born in 1975 and who has experience in the business.[1] When asked what the visa applicant would hope to do in Australia, the review applicant said that he would look after the family and work in seafood. When asked about what job he would hope to do in Australia, the visa applicant said that he wanted to find a job as a businessman.

    [1] An issue emerged at hearing due to the review applicant appearing to call the visa applicant’s younger sister “Thu” when she was not called Thu and, in fact, another sister of the visa applicant was called “Thu”. As implausible as it may seem, the Tribunal is willing to accept, based on the context in which the review applicant gave her evidence and the fact that she was referring to the visa applicant’s younger sister, that the sister called “Uot” was also known as “Thu” (albeit spelt differently and with different diacritic marks over the letters).

24. The Tribunal has concerns about why the parties have not discussed what the visa applicant will do with his business if allowed to travel to Australia, given that he owns the business. It is also concerned about the lack of evidence about what the second-named visa applicant will do in Australia. The Tribunal is not satisfied based on the evidence in front of it that the parties view their relationship as a long-term one. This aspect is given very little weight.

    CONCLUSION

25. 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. Based on the evidence and the findings made against the circumstances of the parties’ relationship, including against the matters set out in r.1.15A(3), it is not satisfied that the parties had a mutual commitment to a shared life as a married couple to the exclusion of all others, that their relationship was genuine and continuing or that they lived together, or did not live separately and apart on a permanent basis, at that time. Therefore, the visa applicant does not meet s.5F(2)(b), (c) or (d) and does not meet the definition of spouse for the purposes of cl.309.211(2). For completeness, there is no evidence that he meets cl.309.211(3).

26. Because the visa applicant has not satisfied the requirements of cl.309.211(2) or cl.309.211(3), he does not meet cl.309.211.

27. Furthermore, and again on the basis of the above evidence and findings, the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time of this decision. Specifically, it is not satisfied that the parties have a mutual commitment to a shared life as a married couple to the exclusion of all others, that their relationship is genuine and continuing or that they live together, or do not live separately and apart on a permanent basis, at the time of decision. Therefore, the visa applicant does not meet s.5F(2)(b), (c) or (d) and, in doing so, does not continue to meet cl.309.211. The visa applicant does not satisfy cl.309.221.

28. Because the visa applicant has not satisfied the primary criteria in Subdivision 309.21, the second-named visa applicant is unable to meet cl.309.311. Furthermore, as the visa applicant is not the holder of a Subclass 309 visa, and because the visa applicant has not been granted a Subclass 309 visa and a Subclass 100 visa, the second-named visa applicant does not meet cl.309.321.

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

    DECISION

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

    David Crawshay
    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).