Luc (Migration)

Luc (Migration) [2022] AATA 3753 (25 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Anh Khoa Luc
REPRESENTATIVE:  Ms Saravjit Saravjit (MARN: 0955324)
CASE NUMBER:  1833074
HOME AFFAIRS REFERENCE(S):          BCC2016/4248595
MEMBER:T. Quinn
DATE OF DECISION:  25 October 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa or a Partner (Residence) (Class BS) visa.

Statement made on 25 October 2022 at 11:26am
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) or Partner (Residence) (Class BS) visa – Subclass 801 (Partner) or 820 (Partner) – genuine and continuing spousal relationship –validly married – financial, household and social aspects of relationship and nature of commitment – applicant entered Australia on prospective marriage visa with another sponsor – parties previously knew each other as friends – hesitant, evasive and inconsistent evidence on critical matters – timing and development of relationship and engagement – sponsor unaware of applicant’s gambling addiction – minimal pooling of finances – living with sponsor’s parents and brother for extended period – sponsor lived in home country for three years – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 5F(2)
Migration Regulations 1994 (Cth), r 1.15A(2), (3), Schedule 2, cls 801.221, 820.211
CASES
Chand v MIEA (unreported, FCA, 7 November 1997)
He v MIBP [2017] FCAFC 206
MIBP v Angkawijaya [2016] FCAFC 5
MIMA v Lay Lat [2006] FCAFC 61
MIMA v Rajalingham (1999) 93 FCR 220
Nejad v MIMA [1999] FCA 1827; [2000] FCA 741
Re MILGEA and Dhillon [1990] FCA 144

Re MIMA; ex parte Durairajasingham [2000] 168 ALR 407
Sein v MIMA (2001) 114 FCR 370
Selvadurai v MIEA (1994) 34 ALR 347
“T” v MIMA [2000] FCA 467

Wang v MIMA [2000] FCA 963
statement of decision and reasons
application for review

On 15 December 2016, the applicant (‘the applicant’ or ‘Mr Luc’) applied for a Partner visa[1] (‘the visa’) based on his marriage to his sponsor, Ms Lien Truc Vo (‘the sponsor’ or ‘Ms Vo’).[2]
[1] Specifically, a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa.
[2]Pursuant to section 65 of the Migration Act 1958 (‘the Act’). At the time of the applicant’s application, Class BS contained only one subclass: Subclass 801 (Partner) and Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of these visas are set out in Parts 801 and 820 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.
On 29 October 2018, a delegate of the Minister for Home Affairs (‘the delegate’) refused the applicant’s partner visa application, not being satisfied that the applicant was the spouse of the sponsor as defined by section 5F of the Act (‘the delegate’s decision’).[3]
[3] See clauses 801.221 or 820.211 of the Migration Regulations 1994 (‘the Regulations’).
On 11 November 2018, the applicant applied for a review of the delegate’s decision with this Tribunal.[4]
[4] Pursuant to sections 338(2) and 347 of the Act.
On 17 October 2022, the applicant and the sponsor appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from: Mr Kuong Vo (the sponsor’s father); Ms Bich Luc (the applicant’s sister); Mr My Nguyen (a friend of Mr Luc); and Ms Tuyet Phan (a friend and work colleague). The hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review and their representative also attended the hearing on 17 October 2022. Ms Saravjit has filed post hearing submissions which have been considered.
It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant(s), in as much detail as necessary to enable the decision maker to properly consider the case that is being put.[5]
[5]Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61.
I have proceeded to a decision having regard to all the information before me. For the following reasons, the decision under review is affirmed. In reaching this decision, I have regarded:
a.the oral evidence of the applicant, the sponsor and the witnesses given at the hearing;
b.the submissions of the applicant’s representative;
c.all material filed by or on behalf of the applicant (including after hearing); and
d.other relevant documents on the Tribunal and Department files.
Not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the reasons set out below. The reasons incorporate reference only to that information found to be fundamental or materially significant to the determination of the issues in the case.
STATUTORY AND LEGAL FRAMEWORK
The issue in this case is whether the applicant and his sponsor (together referred to as ‘the applicants’) are in a spouse relationship as defined by section 5F of the Act.
Clause 820.211(2) of the Regulations requires that at the time the visa application was made the 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 applicant claims that he is the spouse of the sponsor, Ms Lien Truc Vo (‘the sponsor’), who is a Vietnamese born Australian citizen. Based on the information before me I am satisfied that the sponsor is an Australian citizen.[6]
[6]See Department file including the sponsor’s Australian passport.
‘Spouse’ is defined in section 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.[7] 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 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in clause 1.15A(3) of the Regulations are effectively questions which must be answered.[8]
[7] Section 5F(2)(aa)-(d).
[8] He v MIBP [2017] FCAFC 206.
The matters outlined in clause 1.15A(3) of the Regulations (and any other circumstances of the relationship under clause 1.15A(2)) must be considered and, to the extent relevant, applied to the applicant’s case. Accordingly, I have carefully considered these matters in relation to the material and evidence before me. I recognise, however, that the Tribunal is an independent statutory body. I must therefore reach my own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor of clause 1.15A is relevant and applicable, independently of any conclusions reached by the delegate.
Compliance with the prescribed criteria turns on whether or not the criteria have been met and not on the objective existence of that fact.[9] In determining whether it is so satisfied, decision makers are not required to uncritically accept any or all of the claims made by the applicants and I have not done so. A decision maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion is not made out.[10]
[9] Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5 at 15.
[10]Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 at [7].
If a decision maker does not believe a particular witness, no detailed reasons need be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepts or rejects individual pieces of evidence.[11]
[11]Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67].
It is for the applicant, in this inquisitorial process, to put whatever evidence or argument they wish to a decision maker in order to enable that decision maker to reach the requisite state of satisfaction.[12]
CONSIDERATION OF CLAIMS AND EVIDENCE
[12]Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76].
Valid marriage
If the sponsor and the applicant are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. A copy of their Marriage Certificate has been filed with the Department which indicates they were married on 29 November 2016 and that marriage was registered on 10 January 2017.[13] On the evidence, the applicants were married to each other under a marriage that is valid for the purposes of the Act as required by section 5F(2)(a).
[13] See folios 34 and 44 of the Department file.
Timeline
Ms Vo was previously married from 1998-2003.[14] There were no children of that marriage.[15]
[14] See folios 24-25 of the Department file.
[15] See evidence at hearing.
The applicant’s met and Mr Luc’s sister’s house at a party in May 2014.[16] The applicant returned to Vietnam in June 2014.
[16] See folio 5 of the Department file.
The applicants met in Vietnam in November 2015 and spent some time together over the period of a week in Saigon as friends.[17]
[17] See evidence at hearing.
The applicant re-entered Australia on 24 June 2016 on a TO-300 Prospective Marriage visa with a different Australian citizen sponsor. The applicant has given evidence that his previous sponsor ended their relationship on the day of his arrival in Australia in June 2016.[18]
[18] See evidence at hearing and applicant’s relationship statement filed 16 October 2022.
The applicant proposed to his sponsor on her birthday on 2 November 2016 and the applicants were married on 29 November 2016.[19] They had a celebration with 50 or 60 people at a restaurant in Footscray which the applicant’s father came from Vietnam to attend.[20]
[19] See evidence at hearing and folios 34 and 44 of the Department file.
[20] See evidence at hearing.
The applicant and his sponsor made the application which is the subject of this review on 15 December 2016.
The sponsor returned to Vietnam some time in 2019 and has been living there since that time until in or around August 2022.[21]
[21] See evidence at hearing.
The applicants’ migration agent has also filed written submissions which have been read and carefully considered.
Evidence Generally
Although there was consistent evidence given at hearing regarding many aspects, there were inconsistencies regarding critical matters that suggest to me this is not a genuine spousal relationship. When all evidence and material before me is viewed together, I am not satisfied that the applicant and his sponsor have a mutual commitment to a shared life as a married couple to the exclusion of all others, that the relationship is genuine and continuing, and that the couple is living together, not separately and apart on a permanent basis. My reasons are set out below.
Financial aspects of the Relationship
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; and any sharing of day-to-day household expenses must be considered when assessing the financial aspects of the relationship.
The applicants have filed the sponsor’s Will, her superannuation beneficiary statement, the applicant’s ambulance membership listing the sponsor as his dependent, evidence of a MoneyGram sent from the applicant to the sponsor, tax documents, financial documents related to tenancies, several gas accounts, water bills and phone bills.[22] I accept that many of these documents are in joint names.
[22] See submissions of 16 October 2022 in the Tribunal file.
The applicants have filed many joint bank account statements from December 2016-present inclusive which show regular transactions.[23] These statements show significant, regular and large withdrawals at the Crown Casino throughout 2019 and 2020 including $13,000 worth of withdrawals from 15-19 November 2019. These statements also show regular weekly or fortnightly loan repayments from June 2020-present of $221. When asked about this at hearing, the applicant was forthright in explaining he had a gambling addiction (which he has now recovered from) and that the withdrawals at the crown casino were for gambling purposes and that the regular loan repayments of $221 were repaying a loan he took out for gambling. He gave evidence at hearing that his wife was not aware of his gambling addiction or the loan he took out to support his addiction. I am concerned by this evidence as it suggests the joint account was not an account used in the practical sense by both spouses as the gambling addiction is apparent even on a cursory perusal of the statements with large regular withdrawals of $500 at the Crown Casino over a period of months. The sponsor gave evidence that those withdrawals were when she and her husband went for dinner or went shopping and withdrew funds to spend money. When asked about the regular loan payments of $221 (which number close to 100 transactions over a significant period from 2021-2022) she said she did not understand the question and then said she did not know what those payments were for. When asked about whether she knew anything about loans her husband had taken out she said he was selling things online and that money went in and out of the account. She also gave evidence that her husband manages that account, but she has access to it and can only see it over the internet. She said she has checked it ‘every now and then’ over the last few years. I am very troubled by this evidence. The sponsor clearly had no knowledge of her husband’s gambling addiction and gave inconsistent evidence about his financial behaviour and the transactions shown in the account statements. I do not accept that she has checked the account every now and then over the last few years. This is not the knowledge one would expect spouses to have of each other’s finances and financial behaviour.
[23] See submissions of 16 October 2022 in the Tribunal file.
When asked at hearing how the applicant was supporting such a large gambling addiction prior to taking out loans, he said he was earning AUD4-5,000 per month before the COVID19 Pandemic. However, he has filed taxation documents which list his declared income as: $4,954 for the financial year ending June 2017; $14,756 for the financial year ending June 2018; $15,925 for the financial year ending June 2019; $6,614 for the financial year ending June 2020; $38,591 for the financial year ending June 2021; $13,163 for the financial year ending June 2022.[24] The applicant’s income prior to 2020 is not consistent with an income of AUD4-5,000 per month and I am concerned by this inconsistent evidence.
[24] See submissions of 16 October 2022 in the Tribunal file.
When asked at hearing how much his wife earned, the applicant indicated that his wife had been living in Vietnam for the last three years and that she was working in a prawn farming business that received income only upon harvest and was unable to give a clear income figure. This is the first time any information was provided in relation to the fact that the sponsor has been living separately and apart from the applicant for the last three years. I am very concerned by this.
The applicant and the sponsor gave consistent evidence that the applicant was previously earning $170 per day before the COVID19 Pandemic.
The applicant gave evidence that his wife was earning $170 per day before she went to Vietnam, but the sponsor gave evidence that she was running her own business so did not earn money on a weekly or monthly basis. When pressed, the applicant stated she was declaring a taxation income of about $30,000.
The applicant gave evidence that he recently commenced a new hairdressing job and that he is currently working two jobs. The sponsor gave evidence that the applicant recently started a new hairdressing job but that this was his only job, and he is only working part time. The applicant filed post hearing submissions stating (at paragraph 8) that after the COVID19 Pandemic he only resumed one part time 3 days per week and has found a new job recently but is waiting for acceptance from his boss and has not told his wife. This was not the evidence he gave at hearing. I am also troubled – if the post hearing submissions are to be accepted – that he would not share this information with his wife. It seems to me that a couple in a genuine spousal relationship would discuss things like job interviews, job offers and their current working status.
The applicants gave consistent evidence that the sponsor bought a house before they were married (‘the first house’) which she paid the mortgage on which was over $2,000 per month and that she sold that house in August of this year because it was too difficult to finance the mortgage. However, the applicant gave evidence that his wife had to repay the mortgage and a loan to her sister and that upon the sale there were no excess funds between the purchase price and debt repayment. However, the sponsor gave evidence that the mortgage was the only debt she had to repay from the sale price and that there was an excess of $400,000 which she gave to her parents and which her parents will use to buy a smaller house. The sponsor’s father gave corroborating evidence at hearing that there was an excess of $400,000 on the house sale price which his daughter gave to him and his wife and which they plan to use to buy a smaller house. I am concerned by the applicant’s inconsistent evidence in relation to the loan to his sister-in-law and the excess funds from the sale. The applicant has filed post hearing submissions where he states (at paragraphs 6 and 7) that he did not ask much about the house as it belong to his wife’s family before they were married, and that the money was to be given to his sister-in-law to buy a house and that he assumed that his wife owed his sister-in-law money. This is not consistent with the evidence given by the sponsor or her father in relation to how the surplus funds from the sale have been used. The applicant also states money is a sensitive topic and he does not talk with his wife much about it when it involves her family. I do not find this explanation persuasive.
The applicant and sponsor both gave evidence that they were living together with the sponsor’s parents and brother in the first house and that they have moved together into government housing in that same family unit (‘the second house’). They gave consistent evidence together with the sponsor’s father’s evidence that the sponsor’s father pays the rent for that house. However, the sponsor and applicant gave evidence that they do not pay rent or contribute to the rent but help pay for groceries by giving the sponsor’s parents $100 per week. However, the sponsor’s father gave evidence that his children repay the rent of $800 in full and had no knowledge of who paid for the groceries.

The applicants gave consistent evidence that the applicant paid the gas bills in the first house and currently pays the telephone bill and that the sponsor paid the mortgage for the house and the applicant did not contribute. The sponsor’s father gave evidence that his daughter and son in law both paid the mortgage on the first house.
The applicant sent a MoneyGram of $4,500 to the sponsor and has provided evidence of same on 16 October 2022.
The applicant gave evidence that for the last three years the sponsor has been living in Vietnam and the applicant has continued to live with the sponsor’s family during this time, not paying any rent.
The sponsor has filed a will that bequeathed her only major asset, the first house, to her parents and to her brother if they did not survive her and then the residue of her estate to the applicant.[25] However, the sponsor has now sold the first house and given all excess proceeds to her parents. Her remaining limited estate will pass to the applicant. The applicant gave evidence at hearing that he does not have any assets and so does not have a will.
[25] See submissions of 16 October 2022 in the Tribunal file.
The sponsor has filed a superannuation statement from November 2018 declaring her husband as 100% beneficiary of her superannuation.[26]
[26] See submissions of 16 October 2022 in the Tribunal file.
All evidence given by the applicants and witnesses at hearing was consistent that the applicant and the sponsor wish to settle down and buy a house together in the future.
I am very troubled by the financial evidence in this case. I accept that grocery expenses are shared by the applicants. However, there has been minimal practical pooling of their financial resources. They do not have any significant joint ownership of assets even in the constructive sense as the applicant was not contributing to the sponsor’s mortgage costs. They do not have any significant joint liabilities and the sponsor seemed oblivious to the significant financial spending the applicant was engaging in with his gambling addiction. There is no evidence that the applicants owe any legal obligations to each other. Overall, I do not consider the applicants have the level of knowledge about each other’s financial circumstances that one would expect genuine spouses to have.
I am very concerned by the inconsistencies in the evidence at hearing as set out above and ultimately consider the evidence against the applicants in relation to the financial aspects of the relationship outweighs the evidence in their favour.
Nature of the Household
Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are matters to be considered when assessing the nature of the household.
I accept that the applicant and the sponsor have spent time living together in Australia and have provided bills, bank statements and other documents that show both names at the same address. However, they have also been living with the sponsor’s parents and brother which is an unusual arrangement for a married couple of six years. Further, the sponsor has spent the last three years living separately and apart from the applicant, in Vietnam. The applicants both gave evidence that the sponsor ‘got stuck’ in Vietnam after travelling there in 2019. The sponsor gave evidence that the sponsor travelled to Vietnam in mid-2019 and the applicant gave evidence that she travelled to Vietnam in October 2019. I am puzzled by this evidence. I also do not accept that the sponsor, as an Australian citizen, was unable to return to Australia from 2019 until August 2022. Although there were many restrictions on international travel during 2020 and 2021, I consider the sponsor would have been able to travel back to Australia much earlier than August 2022 and certainly since the start of 2022.
The applicants gave evidence that they both want children – the applicant said he and his wife would both like two children and the sponsor said she and her husband would both like one or two children. They both gave evidence that they have been trying to conceive naturally. However, the sponsor has been living overseas for the last three years so I do not accept that they have been trying to conceive for the last three years.
The applicants and the sponsor’s father all gave evidence that the sponsor’s mother does the cooking. The applicant and the sponsor’s father gave evidence that the sponsor’s mother does the dishes together with the applicants and the sponsor’s mother does the grocery shopping. The sponsor gave evidence that her mother does the dishes and that her mother does the grocery shopping and that she and her husband do it sometimes. The applicant gave evidence that everyone does their own washing. The sponsor gave evidence that her mother or she or her husband do the washing.
The witnesses all gave evidence that although the applicant paid for gas in the first house, the sponsor’s parents pay the bills in the second house.
The applicant gave evidence that the first house was a five-bedroom house, and the second house is a four-bedroom house. The sponsor gave evidence that both the first and second house were four-bedroom houses.
I refer to and repeat paragraphs 33-35 and 40 above in relation to the applicants’ real estate history and plans.
The applicants gave consistent evidence that the sponsor’s brother has a girlfriend who visits sometimes. They did not mention that he is divorced which evidence was given by the sponsor’s father.
I accept that the applicants and the sponsor have lived together before the sponsor travelled to Vietnam in 2019 and for the last two months but consider the evidence suggests this is as housemates with the sponsor’s family rather than genuine spouses and am very concerned by the fact that they have not lived together for three years of their six-year marriage.
I consider the evidence against the applicants in relation to the household aspects of the relationship outweigh those in their favour.
Social Aspects of the Relationship
Whether the applicants represent themselves to other people as being married to each other, the opinion of the applicants’ friends and acquaintances about the nature of the relationship and any basis on which the applicants plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.
The applicants have filed photos together and out with others including photos from their wedding dinner although these do not suggest to me that there were 50-60 guests at that event. They have filed post hearing submissions including photos from their engagement, their wedding signing and their reception. They have filed photos doing day to day activities alone and with others, shopping or out for a meal or in Vietnam. However, necessarily these must not have included the three-year period when the sponsor was living in Vietnam.
The applicants were both wearing rings at the hearing.
The applicants have filed statutory declarations from friends and family who have known them for a number of years. Post hearing, they also filed a signed, dated statement from the applicant’s father. These statutory declarations and statements are relatively generic, and I place minimal weight on them. I do note the applicant’s father’s statement that he attended the wedding from Vietnam. The applicants also brought four witnesses to the hearing who all gave evidence that this was a genuine relationship and appealed to the Tribunal to find in their favour. The applicant’s sister became emotional during her evidence and I empathise with the applicant and his family given it is clear he deeply desires to remain in Australia. However, I am concerned that this application has been made to secure the migration outcome of residence rather than on the basis of a genuine spousal relationship.
The applicants have filed written evidence that they wake together, work together and return home together. However, for the last three years the sponsor has been living in another country and this has clearly not been their routine. The applicant continued to live with the sponsor’s family during this time, not paying rent.
Ms Phan gave evidence at hearing that it has been very difficult for the applicant not being able to travel freely between Australia and Vietnam due to his visa status and this is apparent from a perusal of the Department file. I empathise with the applicant in this regard.
The applicants both gave evidence that they travelled to Vietnam in 2017 to introduce each other to both sides of the family. However, the applicant gave evidence that his father was sick at that time and has a heart condition which he continues to take medication for on a monthly basis. When asked if everyone was in good health during that trip to Vietnam in 2017, the sponsor responded ‘yes, very normal’.
I place some weight in favour of the applicants in relation to the social aspects of the relationship.
Nature of the applicant and the sponsor’s commitment to each other
The duration of the relationship, the length of time during which the parties have lived together, the degree of companionship and emotional support that the parties draw from each other and whether the parties see the relationship as a long term one are all aspects to be considered in determining the nature of the parties’ commitment to each other.
The applicants have now been married for six years and gave evidence suggesting they see their relationship as a long one, including that they intend to buy a house together. However, they have not lived together (prior to August 2022) for three years and I am very concerned by this. In addition, the entire time they have spent living together has been with the sponsor’s parents and brother.
The applicant and sponsor gave evidence that they met at the applicant’s sister’s party in May 2014, saw each other once or twice after that party going out with a mutual friend for a meal. The applicant gave evidence that he obtained the sponsor’s phone number from a friend after the party and the sponsor gav6e evidence that they exchanged numbers at the end of the party. The applicant has made post hearing submissions about this inconsistency (at paragraph 1) and I accept that this was a long time ago and do not place any weight against the applicants in relation to the evidence about the timing of exchanging phone numbers.
The applicants gave consistent evidence that they had minimal or no contact between the applicant’s return to Vietnam in June 2014 and the sponsor’s visit for a week in November 2015. The applicant gave evidence that when the sponsor visited in November 2015, he helped her purchase some hairdressing supplies for her shop, but he was not working as a hairdresser at that time. He gave evidence that he had friends working in the industry but that he worked as a fashion manager at that time. The sponsor gave evidence that the applicant was working as a hairdresser when he helped her purchase some hairdressing supplies for her shop in Saigon in November 2015. I am concerned about the inconsistent aspects of this evidence. The applicant has made post hearing submissions (at paragraph 2) stating that he was studying a hairdresser course when he met the sponsor and that is why she said he was working as a hairdresser in Saigon. I am not persuaded by this submission and it is not the evidence the applicant gave at hearing and I am concerned that the applicant is modifying his evidence post hearing to secure a positive outcome.
The applicants gave consistent written and oral evidence at hearing that the applicant’s previous sponsor ended their relationship suddenly upon his arrival in Australia in June 2016 and that the applicant was very sad and distressed. The applicant became emotional during his evidence about how difficult it was for him being in Australia, without his fiancé or English skills, his sister was in Europe and he felt he had no support and the sponsor supported him during this time. I accept that the sponsor offered the applicant emotional and practical support during 2016 after his breakup and that he was attending and working at her hairdressing salon. I accept that the applicant’s (and his sister’s) emotions were authentic at hearing and that this was a very difficult time for him. However, I am not convinced that the support offered by the sponsor was – or has ever been - in the nature of a spousal or romantic partner.
When asked when the relationship developed from a friendship on the applicant’s re-entry into Australia in June 2016 to something more than friends such that the applicants became engaged in November 2016, neither of the applicants could give a clear answer. The applicant said it was a gradual development of feelings and the sponsor said it was ‘step by step’ from ‘friendship in to emotional’. I am not persuaded that in the space of five months the applicants relationship evolved from friendship to an engagement. I am concerned that the applicants have entered into a marriage quickly in order to secure a visa and migration outcome for the applicant who was required under his TO-300 Prospective Marriage visa to have married his ex-fiancé within 9 months of his arrival in June 2016.
The applicants both gave evidence that the applicant surprised the sponsor on her birthday by proposing to her with a ring. However, the applicant said he proposed at a restaurant and the sponsor became very evasive upon questioning where she was when her husband proposed. Eventually after asking multiple times the sponsor gave evidence that he proposed at the hairdressing salon. I am very troubled by this evidence. An engagement in a very significant life event, especially when accompanied by an engagement ring and an event both members of the couple involved would have a very clear memory of. The evidence in this regard does not suggest to me a genuine spousal relationship and raises concerns for me about the credibility of Ms Vo and Mr Luc and whether this is a contrived application in order to secure a positive migration outcome for the applicant. The applicant has made post hearing submissions (at paragraph 3) where he states:
The true is that I proposed to my wife on her birthday at a Vietnamese restaurant in St Albans near the hair salon where we both used to work together. We have photos of when I proposed to her with the presents of both families. My wife admitted that she was very nervous and emotional at the hearing date and clumsily answered that I proposed to her at the hair salon.
I am not persuaded by this explanation of the inconsistent evidence given by the sponsor in relation to the location of their engagement.
Further, when asked if a proposal had been discussed prior to the sponsor’s birthday on 2 November 2016, the applicant gave evidence that they had not discussed getting married before that day. In the application for a partner visa, the applicant lists the date the sponsor and applicant committed to a shared life together to the exclusion of all others as 23 Oct 2016 and provided the following details “[o]n Sun, 23/10/2016, they decided that will get married. They planned to announce their intentions to get married to their families & friends on Lien's birthday which was on 02/11/2016. Anh stayed at Lien's place many times, but they did not start living together officially until they were married.”[27]
[27] See Department file, document ID10337009.
The applicants have not been living together for the last three years (up to August 2022) which raises concerns about the level of emotional support they have been giving each other during that time.
The applicants have filed evidence of regular phone calls. However, the majority of these are for less than three minutes. When asked about this at hearing:
a.the applicant said sometimes the reception was not good and there were interruptions with the Vietnam network but sometimes they would talk for over an hour;
b.the sponsor gave evidence ‘sometimes I was busy’.
I accept that there are screen shots of phone calls that went for much longer than three minutes, but the vast majority of phone calls recorded in the phone records filed lasted three minutes or less and I am very concerned about the inconsistent evidence given by the applicant and the sponsor in this regard.
The applicants have filed text messages and post hearing translations of those text messages. These are generally of a practical nature. There is a message from the applicant wishing the sponsor a happy birthday in 2020 and two valentines day messages in February 2021 and February 2022 respectively. These three messages use language one would expect of someone in a genuine spousal relationship however there is no response from the sponsor to the applicant to any of those three messages. I am very troubled by this.
All witnesses at hearing gave evidence that they consider the relationship a long term one.
I am concerned, as set out above, that Ms Vo did not appear to know about her husband’s gambling addiction or lending arrangements. I acknowledge that Mr Luc gave evidence that he hid this from his wife, but I consider genuine spouses would have at least some knowledge of these sorts of issues, particularly given the l arge sums involved.
The evidence in relation to the degree of companionship and emotional support that the applicant and the sponsor draw from each other is limited and I do not consider supports a finding in their favour.
Other Matters
The Tribunal Guidelines in relation to assessing credibility dictate that evidence is to be assessed in its entirety, not just in isolated parts.[28] The guidelines also state that Members should focus on what is objectively or reasonably believable in the circumstances. The Tribunal does not need rebutting evidence before it can lawfully find that a particular factual assertion made by an applicant is not made out.[29] Where evidence is incoherent, vague or lacking the detail or knowledge where greater detail or knowledge might be expected of a person in the applicant’s claimed position, the weight placed on the applicant’s evidence may be limited and the applicant’s credibility may be questioned.[30]
[28]Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, von Doussa, Moore and Sackville JJ, 7 November 1997); Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220 per Sackville J, with whom North J agreed, at [50]; Sein v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 370
[29]Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALR 347 at 348.
[30]Nejad v Minister for Immigration and Multicultural Affairs [1999] FCA 1827 per Tamberlin J at [9], upheld on appeal, Nejad v Minister for Immigration and Multicultural Affairs [2000] FCA 741; Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 963 per Goldberg J at [20] to [23]; “T” v Minister for Immigration and Multicultural Affairs [2000] FCA 467 per Drummond, Matthews and Mansfield JJ at [27]-[47]
Taking the evidence as a whole, I have concerns about the applicant and the sponsor’s credibility and I am not satisfied that they have provided reliable or truthful evidence in relation to a number of aspects of the questions asked at hearing as set out above. This was particularly the case with the sponsor who became evasive and hesitant with many questions and when pressed on those questions often gave inconsistent evidence compared to the applicant.
Although I accept that there are aspects that fall in the applicants’ favour in this case, I give greater weight to the inconsistent evidence and evidence lacking in credibility and reliability. I consider the latter evidence raises doubts about the applicant and sponsor’s veracity in their evidence about the genuineness of the relationship.

Although the Full Federal Court has held that people enter into marriages with a variety of purposes and motives and it is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to material benefit or advancement, as for example with the hope of becoming eligible to reside in a particular country,[31] I consider this case is motivated by a desire to secure a positive migration outcome and that the applicant and the sponsor are not in a genuine spousal relationship.
[31] Re MILGEA and Dhillon [1990] FCA 144.
CONCLUSIONS
There are hundreds of pages of documents before me and I have read and carefully considered each of these, although they may not all be referred to in the written decision herein. I have assessed the evidence. I accept the applicant and the sponsor have known each other for many years and have spent time living together but I do not consider their relationship is that of genuine spouses.
Having regard to all of the circumstances of the relationship and the evidence taken as a whole, I am not satisfied that when the application was made and at the time of this decision, the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of others or that their relationship is genuine and continuing or that they are living together, or not separately and apart, on a permanent basis.
I am not satisfied that the requirements of section 5F(2) are met at the time the visa application was made or at the time of this decision.
decision
The applicant does not meet clause 801.221 or clause 820.211 of the Regulations.
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visas or a Partner (Residence) (Class BS) visa.
T. Quinn
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).

[2022] AATA 3753

25 October 2022

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