Lam (Migration)

[2017] AATA 301

Lam (Migration) [2017] AATA 301 (16 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Van Do Lam

VISA APPLICANTS:  Mrs Kim Phuong Chau
Miss Truong An Ngo
Miss Truong Vy Ngo

CASE NUMBER:  1607564

DIBP REFERENCE(S):  2014036615

MEMBER:A B Baker

DATE:16 February 2017

PLACE OF DECISION:  Sydney

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

Statement made on 16 February 2017 at 12:51pm

CATCHWORDS

Migration – Partner (Provisional)(Class UF) visa – Subclass 309 – Inconsistencies in evidence – No financial planning –  No mutual commitment - No evidence of comfort or support from each other - Parties each have different reasons for marriage

LEGISLATION

Migration Act 1958, ss 5F, 5F(2)(a)-(d),

65,

Migration Regulations 1994, Schedule 2, cl 309.211(2),cl 309.221, r.1.15A(1)-(4)

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 28 April 2016 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 31 December 2014 on the basis of their relationship with their sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Relevantly to this matter the primary criteria include cl.309.211(2).

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211(2) because the delegate was not satisfied that the applicant was the spouse of the sponsor within the meaning of the Migration Act.

4. The review applicant appeared before the Tribunal on 30 January 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor via telephone from Vietnam.

5. The review applicant was represented in relation to the review by his registered migration agent.

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

   BACKGROUND

7. The applicant provided the Tribunal with a copy of the delegate’s decision along with his application for review.

8. The applicant is a citizen of Vietnam born on 18 April 1969 (57 years old). She was previously married however that marriage ended in divorce in March 2012.There are two children from that relationship born on 2 May 1992 (24 years old) and 15 July 1993 (23 years old) and they are included in this application.

9. The sponsor is an Australian citizen born in Vietnam on 10 June 1956 (60 years old). He was previously married but that marriage ended in divorce in 2009. There are 3 children from this relationship born on 22/07/1983 (33 years old); 2/07/1990 (26 years old) and 19/11/1995 (21 years old). He first arrived in Australia in November 1977 and was granted Australian citizenship on 30 March 1984.

10. The parties claim to have first met at the applicant’s brother-in-law’s house in Vietnam in 2004 and remained in touch. In March 2014 he disclosed his love to the applicant and proposed marriage on 2 May 2014.

11. The sponsor travelled to Vietnam on 19 March 2014 and returned on 16 April 2014.  He travelled to Vietnam again on 15 August 2014 and returned to Australia on 18 September 2014. They were married on 26 August 2014. The sponsor did not travel overseas again until 24 December 2016. He returned to Australia on 2 January 2017.

12. In their submission to the Tribunal, the parties claim that their marriage is recognised by the public and family members. They held two parties, one in Ho Chi Minh city and the other in Long Xuyen to accommodate as many family members as possible. The parties’ parents did not attend because of their advanced age.

13. The parties claim they have known each other very well since 2004 and reacquainted with each other in March 2012 when the applicant divorced her first husband. They married two years later. The parties submit that the delegate’s concerns about the quick inception and development of the parties’ relationship were illogical and based on mere suspicion.

14. The parties urge the Tribunal to consider the whole of their circumstances and facts relating to their particular consideration.

15. The parties also provided the Tribunal with the following documents:

    a.Six money transfers

    b.Record of phone calls between the parties in 2014 and 2015

    c.Wedding cards

    d.A temporary registration of residence for the applicant during his recent trip to Vietnam

    e.Five hotel invoices from 2014

    f.A selection of photographs of the couple together and with others at various locations

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in the present case is whether the applicant is the spouse of the sponsor within the meaning of the Migration Act.

    Whether the parties are in a spouse or de facto relationship

17. 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 by grant.

18. ‘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 husband and wife 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 as to 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.

    Are the parties validly married?

19. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The parties have both provided their relevant divorce certificates and a certificate of their marriage at folios 69 and 70 of the department’s 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).

    Are the other requirements for a spousal relationship met?

20. The Tribunal found the parties’ evidence at the hearing to be inconsistent, evasive, untruthful and unconvincing. The Tribunal does not accept their claims.

21. The Tribunal put its concerns about a range of matters to the review applicant during the hearing, telling him that these matters were important because, depending upon his response; the Tribunal would form a view that he and the visa applicant were not in a genuine marriage and affirm the decision under review. The review applicant’s adviser sought two weeks from the Tribunal to prepare a written response to its concerns. The Tribunal agreed.

22. The parties’ representative responded to the Tribunal’s concerns by referring it to a number of decisions of the IRT and MRT from 1991 through to 2001 where those Tribunals did not find that inconsistencies did not provide sufficient reason to form a conclusion that the parties were not in a genuine and continuing marital relationship. The parties’ representative submitted that the visa applicant’s level of education is low, she has never been to Australia, her memory is bad and she had no intention to lie. The parties did not address any of the Tribunal’s concerns.

    .Financial aspects

23. The parties do not have joint ownership of any real estate of other major assets. They have no joint liabilities. The parties gave evidence that they have neither savings nor assets individually or as a couple. They do not pool their financial resources.  Both manage to pay their own living costs on their wages and little more. The review applicant told the Tribunal that after he paid rent and food there was nothing left to save. Neither has any legal obligation to the other and they do not share household expenses.

24. The visa applicant told the Tribunal that the review applicant earned about $500 a week as a driver. The review applicant told the Tribunal that he earned $1,000 a week. He currently pays $150 a week on a room that he rents in the house of a friend. The visa applicant claimed he was paying $200 per week.

25. The review applicant told the Tribunal that the visa applicant worked as a cleaner at a motel and earned around AUD$200 per month. The visa applicant claimed that she work selling fruit at a market and had been doing so for several years. She earns around AUD$300 per month.

26. The review applicant told the Tribunal that he and the visa applicant would move into a three bedroom house if she was allowed to come to Australia with her daughters and he expected that it would cost around $500 a week. When asked how he would pay for the extra rent and living costs associated with accommodating an extra three people in his life when he had just told the Tribunal he could barely afford to live at the moment, the review applicant said that he would find a way. He thought he might be able to ask his employer for more hours and the visa applicant and her daughters would also work.

27. The visa applicant told the Tribunal that she would find a job for around $10 a hour. She thought that she could do cleaning work, but wasn’t sure. When asked if her daughters would also be working, the visa applicant told the Tribunal that her daughters would be continuing their studies at university. The Tribunal asked the visa applicant how they could afford to pay the university fees of around $25,000 a year, the visa applicant claimed that she would also be working and they would find a way of paying the fees.

28. The inconsistencies in their evidence in relation to each other’s earnings and the occupation of the visa applicant;  what the visa applicant’s daughters will do in Australia make it clear to the Tribunal that the parties have not had any meaningful discussions about their financial situation and how they will manage to live together as a family in Australia. The parties have admitted that they have no assets or saving and yet have given no thought about how they will finance their new lives. The Tribunal is of the mind that such an attitude is not indicative of a couple who have made a commitment to a shared life together as husband and wife.

29. The Tribunal is not satisfied that the financial aspects of the parties’ evidence support a finding that they are in a genuine, ongoing and exclusive relationship.

    Social aspects

30. The parties have provided the Tribunal with some photographs of themselves at their wedding and with others in various locations over a period of time. The review applicant’s son also came to the hearing to support his father and told the Tribunal that he wanted his father to be happy. He told the Tribunal that the review applicant was lonely and had no-one to look after him. He hoped that the review applicant’s marriage to the visa applicant would help him. The Tribunal puts some positive weight on these aspects of the parties’ relationship.

31. However, there is a statement from the visa applicant’s elder sister and brother in law, Bui and Chau. In that statement, Bui and Chau claim that in late 2004 they organised a party to welcome the review applicant from Australia to visit them. They claim that it was at this party that the review applicant met the visa applicant for the first time. The Tribunal puts no weight on this evidence for the following reasons.

32. At the hearing the review applicant told the Tribunal that he first met the visa applicant in 1975 or 1976 when they were still teenagers. He then claimed that he co-incidentally met the visa applicant’s brother in law at a café in 2004 or 2005. He claims that they started talking and he asked about the family of the visa applicant as they came from the same village. It was at this time that the sponsor’s brother in law suggested that they re-acquaint themselves and he went to visit the visa applicant at her house.

33. The visa applicant told the Tribunal that she and the review applicant first met on the 20 March 2012 at her house because he was the friend of her brother in law and they had both been in the army together. The Tribunal asked her if they had met before that in 1975 or 1976 and she said that he was in the army. Asked if they might have met in 2004, she denied this emphatically.

34. The Tribunal put to the review applicant that this account of their meeting was significantly at odds with the account that he, the visa applicant and the visa applicant’s sister and brother-in-law put to the Tribunal. The review applicant claimed that he sometimes forgot things. He claimed that he could not tell the whole story because it was too long. The Tribunal suggested to him that it had time to listen to long stories as long as they were truthful. The Tribunal put to the review applicant that it found that at least one of the accounts of the meeting between him and the visa applicant was obviously untruthful. The Tribunal put to the review applicant that being truthful was important because if it formed a view that he was being untruthful about this aspect of his evidence, it may also form a view that he has been untruthful about other aspects of his evidence. This in turn would lead the Tribunal to affirm the decision under review. The review applicant asked the Tribunal to understand his situation and that he was telling the truth. The Tribunal put to him that both stories could not be true. The parties did not respond in writing to the Tribunal’s concerns about this matter.

35. Having considered all the evidence and weighed the positive aspects of the parties’ evidence, the Tribunal is not satisfied, on balance, that the social aspects of the parties’ relationship support a finding that they are in a genuine, ongoing and exclusive spousal relationship.

    Nature of the household

36. The parties do not share living arrangements or responsibility for housework. They have not been able to form a joint household as they reside in different countries. They do not share responsibility for the care and support of children.

37. The parties have adult children in their twenties and thirties. The review applicant gave some positive evidence in relation to his knowledge of the studies currently being undertaken by the sponsor’s daughters, however he gave evidence inconsistent with the visa applicant in regard to what their future hopes for the children would be.

38. The review applicant told the Tribunal that the visa applicant’s daughters would be working if they came to Australia whilst the visa applicant claimed they would both continue their studies at university. Both parties gave evidence that they had not had detailed discussions with the girls about their future plans and neither had done any research about what universities or courses the girls would, or could, undertake or what the cost of those courses would be.

39. The visa applicant told the Tribunal they would all be living with the review applicant at his current address whilst the review applicant claimed that there was no room for them all at his curt accommodation and he would look to rent a three bedroom premises for around $500 a week.

40. The Tribunal put to the review applicant that his evidence demonstrated to the Tribunal that he and the visa applicant had not had a meaningful conversation about how they would live together as a family if the visa applicant were allowed to come to Australia. The Tribunal put to the review applicant that this was relevant because it may lead the Tribunal to form a view that they do not have a mutual commitment to a life together as spouses and affirm the decision under review. The parties did not respond in writing to these concerns.

41. The Tribunal is not satisfied that the nature of the parties’ household supports a finding that they have a mutual commitment to a shared life as husband and wife to the exclusion of all other or that they see that relationship as a long term one.

    Nature of the persons commitment to each other

42. The Tribunal has considered this aspect of the parties’ relationship including the duration of their relationship and the length of time they have lived together. The parties have spent less than 8 weeks in each other’s company and have not lived together in a shared household as husband and wife because they reside in different countries. The parties’ account of the duration of their relationship is highly contradictory with the review applicant claiming that they first met in 1975 or 1976 and then again from 2004 whilst the visa applicant claims that they met for the first time in 2012. This inconsistency in itself points to a great untruth and the Tribunal has not been able to reconcile the conflicting stories to accept that these inconsistencies were the result of a genuine misunderstanding or a bout of forgetfulness.  The Tribunal is not satisfied that either of the parties’ account of the inception of their relationship is truthful.

43. The parties did not see each other again from the time they were married in 2014 until December 2016 and there is no evidence on the Tribunal’s files that they remained in communication in any meaningful or significant way during that long time apart. When questioned about this during the hearing the review applicant was unable to tell the Tribunal of any significant events, such as births, deaths, marriages or other events that took place in their lives in the intervening period. He told the Tribunal that he called the visa applicant’s children on their birthdays but provided no evidence of this. He sent the girls money for their birthdays. Neither he nor the review applicant exchange gifts.

44. The Tribunal has also considered the degree of companionship and emotional support that they draw from each other and whether they see their relationship as a long term one. The evidence given by the parties at the hearing was inconsistent with the others in almost every way. If there has been communication during their time apart, it is evident that they have not discussed important and life changing matters relating to the potential migration of the visa applicant and her daughters to Australia, what they will do when they get here or how they will do it. The parties gave the Tribunal no meaningful evidence that they drew any comfort or support – emotional or otherwise – from each other. The Tribunal has formed a view that the parties each have very different reasons for entering into the marriage and those reasons are not supported by the legislative requirements.

45. The Tribunal has carefully considered and weighed all the evidence before it. The Tribunal has also considered the parties’ submission in relation to previous Tribunal decisions not to consider inconsistencies as fatal to the parties’ application. The Tribunal also notes that the parties’ representative did not take the opportunity presented by the Tribunal to the parties, to allow them an additional two weeks to consider and formulate a response to the Tribunal’s concerns.

46. On balance, and in the context of all the aspects of the parties’ relationship and the totality of their evidence, and bearing in mind that small inconsistencies in the evidence presented need not be a reason to reject an application, the Tribunal is not satisfied that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal is not satisfied that the relationship between them is genuine and continuing and the Tribunal is not satisfied that they do not live apart on a permanent basis.

    CONCLUSION

1. Given these findings the Tribunal is not satisfied that at the time the visa application was made and at the time of this decision the parties were in a spousal relationship.

2. Therefore the visa applicant does not meet cl.309.211 or cl.309.221.

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

4. As the primary applicant does not meet the legislative requirements for the grant of the visa, the Tribunal finds that the secondary applicants are unable to satisfy the legislative requirements. The Tribunal therefore refuses to grant the visas to all the secondary applicants.

   DECISION

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

   A B Baker
   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).