Khuu (Migration)

[2018] AATA 1912

Khuu (Migration) [2018] AATA 1912 (3 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Kim Loan Khuu

VISA APPLICANTS:  Mr Tuan Phong Nguyen
Ms Thi Ha Trang Nguyen

CASE NUMBER:  1700553

DIBP REFERENCE(S):  2016/039022 2016039022

MEMBER:Helena Claringbold

DATE:3 April 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas.

Statement made on 03 April 2018 at 7:33am

CATCHWORDS
Migration – Prospective Marriage (Temporary) (Class TO) visa – subclass 300 – Insufficient evidence of spousal relationship – Intention to live together as spouses – Inconsistent evidence – Credibility concerns

LEGISLATION
Migration Act 1958, s 5F
Migration Regulations 1994, r 1.15A, Schedule 2, cls 300.216, 300.316, 300.321

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration to refuse to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas under s.65 of the Migration Act 1958 (the Act).

2. On 25 April 2016, Mr Tuan Phong Nguyen, the primary visa applicant (the visa applicant) applied for a Prospective Marriage (Temporary) (Class TO) visa.  The application was made on his prospective marriage relationship with Ms Kim Loan Khuu, the sponsor and review applicant.  Ms Thi Ha Trang is the secondary visa applicant.

3. On 2 December 2016, a delegate of the Minister for Immigration and Border Protection refused to grant the visas. The refusal was based on the primary visa applicant not satisfying cl.300.316 of Schedule 2 to the Migration Regulations 1994. The delegate was not satisfied that the visa applicant and the sponsor intended to live together as spouses. As a result of the visa applicant not satisfying the primary criteria for the grant of the visa, the secondary visa applicant did not satisfy the criteria for the grant of the visa. This is a review of the delegate’s decision.

4. On 12 March 2018, the sponsor appeared before the Tribunal to give evidence and present arguments. She provided the Tribunal with a copy of the delegate’s decision record.  The Tribunal also received oral evidence from Ms Thi Nuoi Vo, Ms Thi Bich Nguyen and Mr An Tuan Nguyen. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

6. The visa applicant and the sponsor provided inconsistent evidence to the Tribunal, which led it to doubt the parties’ credibility.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal has taken into consideration all the evidence in the Department of Immigration and Border Protection’s case file, and the Tribunal’s case file and the evidence given at the Tribunal hearing.

   ISSUE

8. The issue in the present case is whether at the time of application and at the time of decision the parties intend to live together as spouses in a genuine and continuing spousal relationship.

   BACKGROUND ON THE EVIDENCE

9. The visa applicant was born in 1971 in Hai Phong City, Vietnam.  His father is deceased.  His mother and one sibling live in Vietnam.  He has another two siblings who live in Australia. He declared that he divorced his first wife in December 2012. The secondary visa applicant is a daughter from this relationship.

10. The sponsor was born in 1987 in Vietnam. She is an Australian citizen. Her parents and five siblings live in Australia. She has three children from her previous relationships.  Her last de facto relationship ended in 2005.

11. The parties began communicating in March 2014 by email, SMS and telephone. On 1 January 2015 the parties met at Tan Son Nhat Airport. In September 2015, they committed to a shared life to the exclusion of all others.  On 14 May 2017, the parties intended to marry.

    Do the parties genuinely intend to live together?

12. Clause 300.216 requires that at the time of application ‘the parties genuinely intend to live together as spouses’. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where those two people are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is recognised as 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).

13. In considering an application for a Prospective Marriage (Temporary) (Class TO) visa, the Tribunal may have regard to the considerations set out in r.1.15A(3) for spousal relationships: r.1.15A(4). While it is not appropriate to consider whether the parties are spouses at the time of application or time of decision, an investigation of the parties’ intentions with regard to the definition of spouse in legislation may assist in determining the parties’ aspirations.

    CLAIMS AND FINDINGS

14. Having regard to the considerations for a spousal relationship, and the degree to which these factors may be applied to determine a future intention, the Tribunal makes the following findings.

15. The parties do not have any joint ownership of real estate or other major assets, or any joint liabilities.  They have not pooled their financial resources and do not have any major financial commitments.  The parties do not owe any legal obligation in respect of the other and do not share household expenses. The delegate’s decision record indicates that the sponsor transferred to the visa applicant AU$1,200 in 2016. The Tribunal accepts that the parties live in separate countries and have not pooled their finances. 

16. The visa applicant lives in Vietnam and the sponsor lives in Australia. They do not share household responsibilities. The parties have not formed their household. They claim to have been together in various hotels when the sponsor visited Vietnam.  They also claim to have lived together in the visa applicant’s mother’s home, however the parties provided the Tribunal with different accounts of the composition of the home and its uses and of who owned the home. They do not have any joint responsibility for the care and support of children.  The Tribunal accepts that the parties live in different countries and have not formed their household.

17. The parties’ claim to have travelled together in Vietnam. However during the Tribunal hearing they gave inconsistent evidence about where they travelled and how long they stayed at different places.  Photographic evidence depicts the parties together and with others at different locations, some of the photos are dated 2017.  The sponsor’s mother told the Tribunal that the sponsor initially hid the parties’ relationship from her, because she doesn’t like ‘people from that area’.  She stated that she now approves of the relationship, if the sponsor wants to be with ‘this person’. Thi Bich Nguyen and Mr Thi Anh Tuan Nguyen who are the visa applicant’s siblings, told the Tribunal that they hoped the parties could reunite.  The Tribunal is of the view that the witness and third party statements do not outweigh the inconsistent evidence provided by the parties at the Tribunal hearing.  

18. The parties met in 1 January 2015.  In September 2015 they became engaged. They intended to marry in May 2017. The parties claimed to have stayed together in different hotels and at the visa applicant’s mother’s home. They provided inconsistent evidence about these aspects of their relationship which led the Tribunal to question the parties’ credibility and question whether the parties intend to live together in a spousal relationship. These matters are discussed further below.

19. The Tribunal put information to the applicant under the relevant provision.  The information is as follows.

20. The visa applicant gave evidence to the Tribunal that in January 2015, the sponsor stayed more than a week, more than seven days and then said 26 days in Vietnam.  During this time he said that the parties stayed at his mother’s place a couple of days.  He stated that the parties travelled to Vung Tau and Hanoi and had one day and one night at each place.  He said that the parties also travelled to Ho Chi Minh City. This evidence was put to the sponsor as it was inconsistent with her evidence that during this visit of three weeks the parties mainly stayed in Hai Phong at the visa applicant’s mother’s place.  They had one week in Vung Tau and stayed in a hotel close to the beach and didn’t travel anywhere else.

21. The sponsor responded and stated that because she visits so many places when she returns to Vietnam she missed the ‘other place’.  The Tribunal accepts when someone visits many places they could forget a place they have visited. However, it does not accept that the parties could not agree on the length of time they lived with the visa applicant’s mother.

22. The visa applicant gave evidence to the Tribunal that his mother’s home at ground level has a lounge dining room and a toilet and a small unoccupied room.  He then said the area is one large room.  He stated that the next level has a bedroom occupied by his mother, a bedroom occupied by him and the sponsor when she visits and a bathroom. On the next level is his daughter’s bedroom, a bathroom and a shrine. He stated that his mother owns the land and his younger sister owns the house.  This evidence was put to the sponsor as it was inconsistent with her evidence about the visa applicant’s mother’s home.  She stated that at ground level there is a lounge room, kitchen and toilet.  On the next level, there is a bedroom occupied by the visa applicant’s mother and another bedroom occupied by the visa applicant and the sponsor when she visits.  On the next level are the visa applicant’s daughter’s bedroom and a guest room.  On the next level is a shrine to the visa applicant’s father. She stated that the visa applicant’s mother owns the house.

23. The sponsor responded and stated that during her three visits to Vietnam she and the visa applicant spent most of their time travelling. She indicated that she was worried that if she did not respond to the Tribunal it would affect the visa application.  This information is inconsistent with the sponsor’s evidence at the Tribunal hearing when she stated during her visit to Vietnam in 2015, the parties mainly stayed at the visa applicant’s mother’s home. 

24. The visa applicant gave evidence to the Tribunal that the parties’ engagement ceremony began with a prayer service at 10 am and lasted for one hour.  He said that his attendees were his mother, his uncles and cousins and his cousins’ neighbours, the sponsor’s son and the sponsor’s friends from Australia. This evidence was put to the sponsor as it was inconsistent with her evidence that the prayer service began at 7am and finished at 7.30am.  She stated that the attendees were the visa applicant’s mother, his siblings Huyen, Tuan Ha and her husband and her parents-in-law, uncles from the visa applicant’s mother’s side, the sponsor’s son and the visa applicant’s daughter.

25. The sponsor responded and stated that the parties gathered to worship the ancestors at 7am.  They then exchanged rings and gathered in the family room to receive wishes from parents and relatives: ‘Until 10 am, we all have had an engagement party at the restaurant in Hai Phong’. The Tribunal is of the view that the applicant is fabricating her responses to allay the inconsistent evidence provided by the parties at the Tribunal hearing. The Tribunal is not satisfied that the parties are credible.

26. The visa applicant gave evidence to the Tribunal that further celebrations for the parties’ engagement began at 12 noon at a restaurant.  He said there were 40 attendees and six tables cost 10 million VND with a six person table costing 1 million VND. He stated that his younger sister paid for the engagement celebration. This evidence was put to the sponsor as it was inconsistent with her evidence that the cost of a six person table was 4 million VND and the visa applicant’s mother and siblings paid for the engagement celebration.

27. The sponsor responded and stated that because the visa applicant works as a chef, when he gave the cost per table, he worked out the cost of food and not labour or other costs, whereas the applicant gave the total costs. Additionally, she stated that due to their budget the parties were planning to have and pay for 20 guests.  However the visa applicant’s family wanted more guests and they thought that gifts of money during the celebration would cover the cost.  This is why the visa applicant thought his sister would look after the cost. The Tribunal does not accept this response because there was no explanation of these circumstances during the Tribunal hearing.

28. The visa applicant gave evidence to the Tribunal that the parties would have a wedding ceremony in Australia.  He said that the parties would borrow money from his younger brother and sister to pay for the celebration. This evidence was put to the sponsor as it was inconsistent with her evidence that the parties would pay for the wedding celebration.

29. The sponsor did not respond.

30. The visa applicant gave evidence to the Tribunal about his work, he said that if it is busy, he works from 8 am to 10 pm and if not busy he finishes at 8 pm.  He told the Tribunal that other than working he goes out for coffee and plays chess. This evidence was put to the sponsor as it was inconsistent with her evidence that the visa applicant works from 8 am to 6 pm.  She said that the visa applicant does not do anything else and otherwise stays home to look after his mother.

31. The sponsor responded and stated that she gave the visa applicant’s normal hours which are 8am to 6pm.  However during peak times he works an extra two hours and these are the hours the visa applicant provided.  This response is inconsistent with the visa applicant’s information that when busy he works until 10pm and if not to 8pm.  The sponsor did not provide a response about the visa applicant’s out of work activities.

    Other considerations

32. The Tribunal told the sponsor that the delegate referenced supporting letters from the sponsor’s friends, a limited number of photographs and money transfers in 2015.  She was advised that this information is not in the Department’s file and therefore, not before the Tribunal. The Tribunal provided the sponsor additional time to submit this information.  At the time of this decision this information has not been provided.

33. With regard to the considerations for a spousal relationship and to the degree these factors may be applied to determine a future intention, the Tribunal is not satisfied that, the sponsor and the visa applicant demonstrated knowledge of each other broadly consistent with a couple who intend to live together as spouses.  The Tribunal accepts that the parties are known to each other and that the sponsor has returned to Vietnam. The Tribunal examined the parties’ knowledge of their individual and combined financial affairs; the nature of their respective households; their families; the recognition of their relationship by their families; the social aspects of the parties’ relationship and the nature of the parties’ commitment to each other. Having discussed these aspects thoroughly at hearing and as recorded in the Tribunal audio recording and after considering the evidence individually and as a whole, the Tribunal is not satisfied that the parties have a genuine intention to live together as spouses.  At the Tribunal hearing the parties provided inconsistent information including, but not limited to, the circumstances surrounding where they lived and travelled together in Vietnam, about who attended their engagement prayer service, about the cost of their engagement celebration, about the visa applicant’s working hours and after work activities and about the method of payment for their proposed wedding in Australia.

34. The Tribunal considered all the evidence individually and as a whole including in the Department and Tribunal files and the evidence pre-and post-hearing and at the Tribunal hearing. Given the inconsistent evidence and credibility concerns, the Tribunal, is not prepared to accept the parties’ evidence about their commitment to the relationship.  The parties have not satisfied the Tribunal that they intend to live together in a spousal relationship.

35. On the basis of the above and even after considering the witness statements, the Tribunal is not satisfied that at the time of the visa application the parties genuinely intended to live together as spouses, and therefore cl.300.216 of Schedule 2 to the Regulations is not met.

36. As the visa applicant has not met the primary criteria for the grant of the visa, it follows that the secondary visa applicant does not meet the criteria for the grant of the visa. As a result the secondary visa applicant does not meet cl.300.321 of Schedule 2 to the Regulations.

37. For the reasons above, the Tribunal finds the visa applicant does not satisfy the criteria for the grant of the visa.

    DECISION

38. The Tribunal affirms the decision not to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas.

    Helena Claringbold
    Member