Luu (Migration)

[2021] AATA 5547

Luu (Migration) [2021] AATA 5547 (16 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Benjamin Luu

VISA APPLICANT:  Ms Thi Phuong Thao Pham

CASE NUMBER:  1814669

DIBP REFERENCE(S):  BCC2017/2295643

MEMBER:Michael Ison

DATE:16 December 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 16 December 2021 at 11:34am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – inconsistent oral evidence of the applicants – financial aspects – nature of the household – social aspects – nature of the commitment – time spent together – knowledge of and relationship with each other’s family – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 309.211, 309.221

CASES
He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS

application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 11 May 2018 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

   Background

2. The visa applicant is Ms Thi Phuong Thao Pham who is 36 years old and is a national of Vietnam. Ms Pham is referred to as the visa applicant in these reasons for decision.

3. The review applicant is Mr Benjamin Luu who is 32 years old and is a national of Australia. Mr Luu is referred to as the review applicant in these reasons for decision.

4. The applicants first met on 2 December 2016 in Ho Chi Minh City, Vietnam and got married on 19 May 2017 in Vietnam. They registered their marriage in Vietnam with the local authorities.

5. On 23 June 2017 the visa applicant applied for an offshore Combined Partner (Class UF) (Subclass 309) and (Class BC) (Subclass 100) visa as the spouse of her sponsor, the review applicant. It is the refusal to grant the visa applicant’s Partner visa that is subject of this review.

6. In the visa applicant’s Partner visa application, she did not declare any previous marriages or de facto relationships.

7. In the Sponsorship application form, the review applicant did not declare any previous marriages or de facto relationships.

8. At the time visa applicant applied for the Partner visa, the applicants were married and applied on the basis of the visa applicant being the spouse of the review applicant.

9. There is no evidence before the Tribunal that the applicants are related by birth (blood), marriage or adoption or that prior to meeting in December 2016 they were known to each other.

   The primary decision of a delegate of the Minister

10. The review applicant provided the Tribunal with a copy of the primary decision.

11. The visa applicant applied for the Partner visa on 29 March 2018 on the basis of her relationship with her 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.

12. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because the delegate was not satisfied, having assessed the applicants’ relationship against the definition of spouse in s.5F of the Act and the considerations set out in r.1.15A made pursuant to s.5F(3), that they were in a genuine spouse relationship.

    The Tribunal hearing

13. The review applicant and the visa applicant appeared before the Tribunal on 10 August 2021 to give evidence and present arguments, by video and telephone respectively.

14. The applicants were represented in relation to the review by their registered migration agent, Dr. Tung-Bao Ngo. Dr. Ngo is referred to in these reasons as the applicants’ representative or the representative.

15. The applicants’ representative participated in the Tribunal hearing by video.

16. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. 

17. The hearing was held during the COVID-19 pandemic when there were extensive restrictions on the movement and gathering of people in Victoria, in other States and Territories and also internationally. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal was satisfied the applicants, the applicants’ representative, the interpreter and the Tribunal could satisfactorily see, hear and understand each other during the hearing. The Tribunal is also satisfied the review applicant was given a fair opportunity to give evidence and present arguments to the Tribunal in support of the application for review.

18. At the commencement of the Tribunal hearing the Tribunal explained the role of the interpreter as an aid to communication and asked the applicants whether they had any objection to the use of the interpreter retained by the Tribunal. The applicants individually indicated they did not. The Tribunal explained to the applicants the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal also explained the role of the applicants’ representative during the hearing. The Tribunal informed the applicants that it would seek submissions from both of the applicants and their representative toward the end of the Tribunal hearing on any matter they considered relevant to the review.

    Pre-hearing submissions

19. The Tribunal received the following submissions on behalf of the applicants prior to the Tribunal hearing, with the main, but not all, documents attached to each submission noted in dot points:

    12 July 2021

    ·a six-page written statement from the representative and 308 pages of attachments;

    ·copy of the Department’s decision record;

    ·copy of Vietnamese passport of the visa applicant valid to 23 March 2027;

    ·copy of Australian passport of the review applicant valid to 10 March 2027;

    ·certified copies of a translated and original marriage certificate dated 19 May 2017;

    ·applicants’ joint statement about their relationship of three pages dated 16 June 2017;

    ·undated letter of support from the review applicant’s parents;

    ·Statutory declaration using form 888 declared by the visa applicant’s mother on 5 July 2021, with personal identification information;

    ·Statutory declaration using form 888 declared by the visa applicant’s brother on 5 July 2021, with personal identification information;

    ·Statutory declaration using form 888 declared by the visa applicant’s brother-in-law on 5 July 2021, with personal identification information;

    ·a list of 21 money transfers from the review applicant to the visa applicant from April 2017 to March 2021 totalling AUD7,300 with copies of the original receipts for each transfer;

    ·copy of the review applicant’s Victorian drivers licence valid to 19 December 2019;

    ·certified copies of translated and original certificates of temporary residence of the review applicant in Vietnam from 29 March 2017 to 31 March 2017 and from 19 May 2017 to 24 May 2017;  

    ·evidence of a joint trip by the applicants from Ho Chi Minh City to Nha Trang in May 2017;

    ·hotels invoices in the joint names of the applicants during the trip to Ho Chi Minh City in May 2017;

    ·untranslated announcement of marriage card and wedding invitation dated May 2017;

    ·untranslated wedding invoice dated 7 May 2017;

    ·two bills of shipment for gifts sent by the visa applicant to the review applicant in December 2016 and February 2017;

    ·printouts of chat and call records from 30 November 2017 to 8 January 2018;

    ·printouts of chat and call records from 13 January 2018 to 14 January 2019;

    ·printouts of chat and call records from 17 February 2018 to 1 February 2019 noting these printouts are not in chronological order and appear to be three separate groups of records during this period;

    ·printouts of chat and call records from 16 January 2019 to 25 January 2020 noting some of the printouts in these records are not in chronological order;

    ·printouts of chat and call records from January 2019 to 26 July 2019;

    ·printouts of call records from 8 February 2020 to 7 April 2020;

    ·photographs from December 2018, March 2019 and December 2019 of various social gatherings; and

    ·six compact discs of photographs of the applicants’ marriage ceremony and celebration in 2017, trips, various social gatherings and a 452-page document containing a 78-page transcript of messages between the applicants’ using Viber but which are undated. The CD’s contained nearly 900 photographs, many of which were duplicates. These photographs were undated and not marked for location or event or identifying who people other than the applicants’ are that are in the photos.

    24 July 2021

    ·one-page written statement from the representative;

    ·12 pages of screen captures of chat records between the applicants in 2019 that were not in chronological order;

    ·31 pages of chat records commencing on 24 December 2020 to 28 March 2021; and

    ·30 pages of chat records from April 2021 to June 2021.

20. The Tribunal confirmed with the applicants’ representative at the commencement of the Tribunal hearing that these were all of the submissions provided to the Tribunal.

21. The Tribunal also received various other correspondence from the applicants’ representative in relation to the applicants’ participation in the Tribunal hearing and other administrative matters.

    Inconsistent oral evidence of the applicants

22. On 18 August 2021 the Tribunal wrote to the review applicant in accordance with the procedure set out in s.359A of the Act inviting the review applicant to comment on or respond to adverse information provided during the hearing in the form of inconsistent answers provided by the applicants’ during their respective oral evidence.

23. The Tribunal’s letter is set out in full in Attachment Two to these reasons for decision and included the following:

    The inconsistencies in your and the visa applicant’s oral evidence during the Tribunal hearing were:

Your evidence (review applicant)

Visa applicant’s evidence

The visa applicant is trying to buy a property in Vietnam as your alternate plan if the visa applicant is not granted a Partner visa to come to Australia is for you to live in Vietnam.

The visa applicant did not give evidence she is trying to buy a property in Vietnam and stated if you came to Vietnam to live you would rent a property together.

The visa applicant lived in Ho Chi Minh City with a friend named Phi.

The visa applicant lived in Ho Chi Minh City with Phi who was her younger cousin.

If the visa applicant was granted the Partner visa and came to Australia you would live together in your parents’ house, which you hope to purchase from your parents.

If the visa applicant was granted a Partner visa and came to Australia you would live together in rented accommodation.

The visa applicant in her closing remarks stated her earlier evidence was that you would live in your parents’ house. The Tribunal explained this was not her earlier evidence. The visa applicant responded her earlier evidence about living in rented accommodation related to your joint plans prior to the visa applicant meeting your parents in 2018. The Tribunal does not accept this as a plausible explanation for the visa applicant’s earlier and then change of evidence.

Your parents went to Vietnam in late 2017 or early 2018 for a great auntie’s birthday and family re-union.

The visa applicant met your parents for a meal in Ho Chi Minh City in Vietnam 2019 when they travelled for a holiday.

The visa applicant did not travel to third countries to spend time with you when you travelled overseas because she had tried to get visas for such trips in the past and was not successful.

The visa applicant did not travel to third countries to spend time with you when you travelled overseas because you were travelling for business and the visa applicant did not want to have any effect on your work.

Your brother Warren has a daughter named Evelynne who is a few months old.

Your brother Warren has a step-son named Ethan and a daughter Evelynne who was born a few months ago.

Your evidence (review applicant)	Visa applicant’s evidence
The visa applicant’s brother Bang has a son Alfred who is about 1 year old.	The visa applicant’s brother Bang has a son Andrew who was born in 2021 and is about 6 months old.

Post-hearing submissions

1. On 27 August 2021 the applicants’ representative provided a three-page written response to the Tribunal’s letter dated 18 August 2021. The applicants’ response are considered in paragraphs 72 to 84 of these reasons for decision.

   Tribunal decision

2. The Tribunal has had regard to the applicants’ oral evidence, all of the information in the written and oral submissions provided to the Tribunal on the applicants’ behalf and to the information in the Tribunal’s file and the Tribunal’s copy of the Department’s file. The Department’s file included a copy of the original application for the Partner visa and all documents submitted by the applicants to the Department in support of the application for that visa.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The issue in the present case is whether the visa applicant is the spouse of the review applicant as the term ‘spouse’ is defined in s.5F of the Act and in accordance with the considerations set out in r.1.15A of the Regulations made for the purposes of s.5F(3) and as is required at the time of application for the Partner visa by cl.309.211 and at the time of this decision by cl.309.221 of Schedule 2 to the Regulations.

   Whether the parties are in a spouse or de facto relationship

5. Clauses 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.

6. ‘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).

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 r.1.15A(3), which is extracted in Attachment One to these reasons for decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

   Are the parties validly married?

8. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.

9. The visa applicant and the review applicant claim to have met in Ho Chi Minh City, Vietnam on 2 December 2016 and got married in Vietnam on 19 May 2017. The review applicant has provided certified copies of a translated and the original marriage certificate and the Tribunal accepts the applicants are validly married.

10. 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?

11. To be satisfied that the applicants are in a genuine spouse relationship the Tribunal must be satisfied each of the criteria set out in r.1.15A(3)(a), (b), (c) and (d) are satisfied and the Tribunal must consider any other circumstances of the relationship under r.1.15A(2).

    Financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

12. The applicants’ do not claim to jointly own any assets, have any joint liabilities or owe legal obligations in respect of each other. There is also very limited evidence before the Tribunal of the applicants sharing day-to-day household expenses, even during the short periods of time they have lived together. The Tribunal recognises that the applicants live in separate countries and does not make any adverse findings in relation to the sharing of household expenses.

13. The applicants both gave evidence that the review applicant has financially assisted but not fully supported the visa applicant since their May 2017 marriage and this year transferred in February AUD1,000 and in March AUD500 to support the visa applicant’s online cosmetics business. The review applicant provided a list of 21 money transfers from the review applicant to the visa applicant from April 2017 to March 2021 totalling AUD7,300 and also provided copies of the original receipts for each transfer. The Tribunal accepts this evidence, but notes the support provided by the review applicant to the visa applicant is limited to an average of less than AUD1,900 per annum since their marriage. 

14. Apart from the transfers made to support the visa applicant’s cosmetics business, the review applicant was not aware what the visa applicant spent the money on that he sent her. The review applicant told the Tribunal that the visa applicant earned, at least prior to the emergence of the COVID-19 global pandemic, an average of approximately AUD900 per month from her cosmetics business and so did not require significant financial support from the review applicant. The Tribunal did not receive any documentary evidence to support the review applicant’s claims in regard to the visa applicant’s income.

15. The review applicant also told the Tribunal he is a shareholder of a franchised tobacco retail business with his brother who owns the business and that they have a shop in Springvale, Victoria which the review applicant manages, often working seven days per week. The visa applicant gave consistent evidence in this regard. The review applicant told the Tribunal the business has continued through the Government responses to the COVID-19 global pandemic in Victoria and his annual salary is AUD110,000 and he expects to receive share dividends of AUD200,000 to AUD300,000 in the coming year. The Tribunal did not receive any documentary evidence to support the review applicant’s claims in this regard.

16. The applicants gave separate but consistent evidence about their respective businesses and the visa applicant being largely financially self-sufficient prior to the ongoing impacts of the COVID-19 global pandemic affecting her cosmetics business. The applicants also gave separate but consistent evidence that they both had a focus on the review applicant being successful in his retail tobacco business and saving as much money as he could for when they hope the visa applicant joins him in Australia.

1. The evidence before the Tribunal of the applicants pooling their financial resources is not strong, but in the applicants’ circumstances, including their respective employment, the Tribunal finds that overall this consideration is neutral and weighs neither in favour of nor against a finding that the applicants’ are in a genuine spouse relationship.

   Nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

2. The review applicant claims to have visited the visa applicant in Vietnam on five occasions:

   ·For 10 days between 2 December 2016 and 11 December 2016 (this was when the applicants first met);

   ·For 8 days between 26 March 2017 and 2 April 2017 (the review applicant proposed to the visa applicant on 28 March 2017);

   ·For 18 days between 12 May 2017 and 29 May 2017 (the applicants married in Vietnam on 19 May 2017, followed by a traditional ceremony on 20 May 2017);

   ·For 9 days between 4 June 2017 and 12 June 2017;

   ·For 6 days between 19 May 2018 and 24 May 2018.

3. Based on this information provided to the Tribunal by the review applicant, the applicants’ have spent approximately 26 days together during their now four-and-a-half-year marriage and have only spent 51 days together since and including their first meeting.

4. The Tribunal does not consider the time the applicants have spent together to be sufficient time for the applicants to establish a household together. In addition, there is evidence on the Department file and that the review applicant provided to the Tribunal that indicates that after their wedding during the May 2017 time together the applicants’ spent four nights in a hotel and all nights during the June 2017 trip were spent in a hotel. Staying in a large commercial hotel in a city such as Ho Chi Minh City provides at best limited, if any, practical opportunity to establish a household or share housework.

5. The applicants’ separate but consistent evidence, which the Tribunal accepts, is that they do not have any children together or separately or otherwise have responsibility for the care of children.

6. The evidence before the Tribunal of the nature of the applicants’ household is also not strong, but in the applicants’ circumstances, including having lived in separate countries throughout their marriage, the Tribunal finds that overall this consideration is neutral and weighs neither in favour of nor against a finding that the applicants’ are in a genuine spouse relationship.

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

7. The photographic evidence provided to the Tribunal was extensive, but poorly presented. Apart from the photographs that were obviously of the applicants’ wedding and celebrations, it was difficult for the Tribunal to discern which photographs related to which trip the review applicant made to Vietnam. The photographs were not dated, had very little identifying information (in some, through local signage, the location was obvious), were not presented in chronological or any other obvious order, contained many duplicates and there was no annotation to state when people in addition to or other than the applicants’ were in the photos, who those people were.

8. What the Tribunal could tell and finds from the photos is that the applicants’ May 2017 wedding and subsequent celebrations held in the visa applicant’s home village were attended by a large number of the visa applicant’s family, friends and local community. This evidence was supported by statutory declarations from the visa applicant’s mother, brother and brother-in-law, each deposed on 5 July 2021, and each declaring their knowledge of the history of the applicants’ relationship and their separate views that the relationship is genuine, continuing and long-term. The Tribunal finds that the visa applicant and review applicant present themselves to the visa applicant’s family, friends and acquaintances as a married couple.

9. There is less evidence before the Tribunal that the couple present themselves to the review applicant’s family, friends and acquaintances as a married couple. The Tribunal acknowledges that the visa applicant has not been able to travel to Australia. However, none of the review applicant’s direct family attended the applicants’ May 2017 wedding.

10. The review applicant’s evidence is that his parents did not attend his wedding because they did not approve of the marriage at that stage as they thought their son, according to the review applicant, was “rushing into a marriage”. This view is understandable given the history of the applicants’ relationship: they first met in Vietnam on 2 December 2016 and only spent days together with the review applicant asking the visa applicant to be his girlfriend before he left Vietnam on 11 December 2016. The review applicant returned to Vietnam in March 2017 and proposed to the visa applicant but only spent six days with the visa applicant during this trip. At the time the review applicant asked the visa applicant to marry him the applicants had spent less than two weeks together. Then the applicants were married in Vietnam on 20 May 2017, less than six months after they first met and having only spent approximately 24 days together in that time.

11. The Tribunal did not have the benefit of hearing the evidence of the review applicant’s parents, despite them living in Melbourne. In a short, undated letter of support they both signed, the review applicant’s parents confirm they did not initially support the marriage because they did think their son had rushed into it. The review applicant’s parents go on to state in their letter of support that they now fully support the applicants’ relationship having met the visa applicant and her family in Vietnam and are excited for the visa applicant to come to Australia to join their family.

12. The evidence of the review applicant is that his parents travelled to Vietnam in late 2017 or early 2018 for a family re-union for an aunt’s birthday and they met the visa applicant during this trip.

13. The review applicant’s only and older brother, Warren, and the review applicant’s best friend, Francis, travelled with the review applicant to Vietnam in May 2017 for the applicants’ wedding. Ultimately, Warren did not attend the wedding because, according to the review applicant, Warren had an “emergency” in his business in Shanghai, China and had to go there before the wedding. Warren travelling to Vietnam with the intention of attending his brother’s wedding indicates to the Tribunal that Warren accepted and supported their marriage at that time. The Tribunal has received no information from Warren about any subsequent interactions with his brother and wife, the applicants, since their wedding or about his views of their relationship.

14. There is no evidence from Francis before the Tribunal about the applicants’ relationship.

15. There is also no evidence from the review applicant’s only and younger sister, Rachel before the Tribunal about the applicants’ relationship.

16. The review applicant told the Tribunal that his family loves each other but are not close which is why he did not consult his parents when he decided to marry the visa applicant. The review applicant told the Tribunal that he is closest to Warren, who lived in Shanghai, China for nine years, but that his sister Rachel had not met his wife, the visa applicant.

17. There is insufficient evidence before the Tribunal for the Tribunal to make any finding in relation to how the applicants’ present to the review applicant’s family and whether the review applicant’s family accept their marriage and view them as a married couple. This does not support a finding that overall the social aspects of the applicants’ relationship weigh in favour of a finding that the applicants’ are in a genuine spouse relationship.

18. Interspersed amongst the nearly 900 photos provided to the Tribunal, the majority of which were of the applicants’ legal wedding and traditional celebration, are photos of the applicants in social settings. Most of those photos are of the applicants together only. However, there are a number of photos that appear to be of the applicants with the visa applicant’s family at their village and there are also a number of photos of the applicants, predominantly in restaurant settings, with what appears to be friends rather than family members. It was not possible for the Tribunal to discern which of these ‘social photos’ were taken following the applicants’ May 2017 wedding and represented them presenting themselves as and socialising as, a married couple. While this photo evidence is not strong, the Tribunal accepts when considered with the applicants’ separate oral evidence and written evidence that there is sufficient evidence for the Tribunal to find that when the applicants were together in Vietnam following their wedding, and during their time together in Vietnam during June 2017 and May 2018, they did plan social activities and present to family, friends and acquaintances in Vietnam as a married couple.

19. The Tribunal finds that overall the consideration of the social aspects of the applicants’ relationship supports a finding that the applicants are in a genuine married relationship, but when considering some of the limitations of the evidence before the Tribunal, particularly from the review applicant’s family and friends, the Tribunal gives this consideration only some weight. With clearer and stronger evidence the Tribunal may have given this consideration considerable or even significant weight.

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

20. At the time of this decision the applicants’ have been married for over four and a half years. As noted in paragraph 42 of these reasons, since their May 2017 wedding the applicants have spent only approximately 26 days together.

21. The Tribunal accepts that since the emergence of the COVID-19 global pandemic in early 2020, and the implementation of restrictions on the movement and gathering of people from time to time since March 2020, that the review applicant has not been able to visit the visa applicant in Vietnam or a third country for reasons outside the applicants’ reasonable control. The Tribunal makes no adverse findings and draws no adverse inferences against the applicants in this regard.

22. The Tribunal shared with the review applicant during the Tribunal hearing information that would be the reason, or a part of the reason, for the Tribunal to affirm the decision that is under review. The Tribunal shared that information with the review applicant in accordance with the procedure set out in s.359AA of the Act, including providing clear particulars of the information, explaining how the information is relevant to the review and also explaining the consequences for the review if the Tribunal relied on the information. The review applicant acknowledged at the relevant times that he understood the relevance of the information the Tribunal shared with him to the review and also understood the consequences for the review of the Tribunal relying on the information.

23. The information the Tribunal shared with the review applicant was information from his movement records which showed that since the review applicant had last visited the visa applicant in May and June 2018 he had undertaken five further overseas trips, but none to visit the visa applicant. Those trips were between:

    ·14 August 2018 to 22 August 2018;

    ·23 November 2018 to 6 December 2018;

    ·13 April 2019 to 25 April 2019;

    ·26 July 2019 to 10 August 2019; and

    ·1 November 2019 to 8 November 2019.

24. The Tribunal offered the review applicant additional time to consider this information before responding to or commenting upon it. The review applicant requested and was granted a short adjournment by the Tribunal to consider the information the Tribunal shared with him, including discussing it with his representative.

25. Upon the resumption of the Tribunal hearing the review applicant explained the purpose of each trip as follows:

    14 August 2018 to 22 August 2018

    Trip to Shanghai, China to visit his brother Warren to figure out what sort of business they could run together.

    23 November 2018 to 6 December 2018

    Trip to London, United Kingdom with the review applicant’s best friend Francis and meeting friends who had moved to and were working in London. The review applicant’s friends all had finance backgrounds and he was hoping to develop business ideas with them that he could bring back to and implement in Australia. They also did some sightseeing.

    13 April 2019 to 25 April 2019

    Trip to Shanghai, China to visit his brother Warren to finalise what sort of business they could run together when Warren returned to Australia.

    26 July 2019 to 10 August 2019

    Trip to Hong Kong and China finishing up the toy business the review applicant operated before commencing the retail tobacco business with Warren. This included visiting the review applicant’s key suppliers to thank them. The review applicant also met some potential clients who were looking to invest in property in Australia but these meetings did not result in any business arrangements.

    1 November 2019 to 8 November 2019

    Francis was travelling to Europe so the review applicant and Francis decided to meet for one night in Hong Kong and then the review applicant travelled to Thailand to meet friends to celebrate a mutual friend’s birthday. The review applicant described this trip as a “boys trip”.

26. The Tribunal discussed in detail with the review applicant why he travelled overseas five times from August 2018 to November 2019 but did not visit his wife in Vietnam or arrange to meet her in a third country despite having only been married in May 2017 and having last spent time together in May 2018.

27. The review applicant told the Tribunal it was hard for the visa applicant to get a visa to meet him in a third country. As noted in the table in paragraph 23 of these reasons (the Table), this was not the visa applicant’s evidence. The visa applicant’s evidence was that she did not want to distract the review applicant from the conduct of his business on those trips. In response to this information set out in the Table, the review applicant’s representative submitted after the hearing that the visa applicant understood how hard and busy the review applicant was in trying to start a business for their future and the one thing she could contribute was not to bother him while he travelled to third countries for business and also it would take her a long time to obtain a visa but the review applicant’s overseas trips often changed unexpectedly.

28. The review applicant also told the Tribunal as he and the visa applicant had a long-distance relationship, he was trying to keep their relationship as simple as possible because in previous long-distance relationships he had found if they become too complicated then they end.

29. The Tribunal was not convinced by this evidence or explanations. The review applicant told the Tribunal his last trip in November 2019 was a “boys trip” and not for business. At that time the review applicant had not seen the visa applicant in person for over 18 months of their then 30-month marriage. It does not seem consistent with the applicants being in a genuine spouse relationship that the review applicant would prioritise, or the visa applicant would agree to, the review applicant going on a “boys trip” to Thailand over seeing his wife in Vietnam.

30. The review applicant’s evidence in relation to the November 2018 trip to London indicated to the Tribunal that it was primarily a holiday, rather than being focused solely or even primarily on business, although the Tribunal accepts the review applicant may have discussed some business ideas during that trip.

31. The review applicant did not give evidence that any of the trips were time sensitive or urgent and it is not obvious to the Tribunal based on the evidence before it that the applicants could not have arranged to meet, particularly as all of the review applicant’s overseas trips, which included three trips to Shanghai, China and a trip to Thailand, occurred before international travel restrictions were put in place in response to the emergence of the COVID-19 global pandemic.  

32. The Tribunal also found the visa applicant’s explanation that she did not want to bother or be a distraction to the review applicant to be unconvincing. The Tribunal would reasonably expect a couple in a genuine spousal relationship, particularly in the circumstances of the applicants who had spent so little time together after their marriage, to take any reasonable opportunity available to them to spend time together. The Tribunal expects that if the applicants were in a genuine spousal relationship that the visa applicant could have provided valuable emotional and other practical support to the review applicant during at least the three business trips to China.

33. This evidence in relation to the review applicant’s post-wedding overseas travel and the reasons for that travel and not visiting the visa applicant do not support a finding that the applicants are in a genuine spouse relationship.

34. The Tribunal also has significant concerns about the evidence of the applicants in relation to their plans together, their knowledge of and relationship with their spouse’s families and other significant life decisions the Tribunal reasonably expected they would have discussed and given consistent evidence about.

35. The first concern for the Tribunal was the visa applicant told the Tribunal if she is not granted a visa then the review applicant will move to Vietnam and she intends to buy a property in Vietnam for them to live in. In relation to this alternate plan, the review applicant told the Tribunal if he has to move to Vietnam the applicants’ will rent a property together. The representative in the post-hearing response to this information submitted that the difference in evidence was a timing issue: the applicants would initially rent a property in Vietnam before eventually buying a property together. The Tribunal accepts this explanation and makes no adverse findings and draws no adverse inferences against the applicants in relation to this evidence.

36. The Tribunal also accepts the post-hearing explanations provided in relation to the visa applicant’s flatmate in Ho Chi Minh City, the timing of the review applicant’s parents trip to Vietnam and the children of the review applicant’s brother, Warren. The Tribunal makes no adverse findings and draws no adverse inferences against the applicants in relation to this evidence.

37. The Tribunal asked both applicants, separately, where they would live if the visa applicant came to Australia and they provided the different answers noted in the Table in paragraph 23 of these reasons. The visa applicant changed her evidence during the hearing and when the Tribunal asked why she had done so, provided an explanation the Tribunal does not accept as plausible. As the Tribunal did not accept the visa applicant’s explanation of why she changed her evidence in this regard during the hearing, the Tribunal has disregarded that changed evidence. The Tribunal does not accept that the submissions satisfactorily explain the initial inconsistent evidence of the applicants’ in this regard. This inconsistency causes the Tribunal concern that the applicants have not discussed or do not have a common understanding on a key relationship issue the Tribunal would expect they would have reached agreement on, such as where they will live in Australia should the visa applicant be granted the visa. This does not support a finding that they are in a genuine spouse relationship.

1. The review applicant’s limited knowledge of and relationship with the family of his wife, the visa applicant, is not consistent in the Tribunal’s view with the applicants’ being in a genuine spouse relationship.  The review applicant told the Tribunal the visa applicant’s brother has a son who is almost one year of age and is named Alfred. The visa applicant separately told the Tribunal her nephew is 6 months old and is named Andrew. The post hearing submission received in relation to this inconsistent evidence confirmed only that visa applicant was correct in relation to the age of her nephew and does not comment on or respond to the inconsistency in the applicants’ evidence in relation to the visa applicant’s nephew. When discussing the visa applicant’s family with the review applicant, he also told the Tribunal he could not recall the name of the wife of the visa applicant’s brother.

2. The review applicant gave evidence that was consistent with the evidence of the visa applicant that the visa applicant’s only brother and sister both live in Australia, are married and have children and that the visa applicant’s mother has been living in Australia since just prior to COVID-19 global pandemic travel restrictions being put in place. Despite the presence of his sister-in-law and brother-in-law in Australia and since March 2020 his mother-in-law in Australia, the review applicant told the Tribunal he had not seen any of them very often at all. The review applicant told the Tribunal he has only visited his sister-in-law once in 2018 for a baby shower and spent time in Vietnam with his sister-in-law’s husband Steven, but does not know Steven’s full (family) name.

3. The visa applicant told the Tribunal that her mother only speaks Vietnamese and the visa applicant told the Tribunal he speaks only limited Vietnamese. The Tribunal accepts these language differences may partly explain limited, but not a complete lack of, communication between the review applicant and his mother-in-law, who lives with her daughter who has lived in Australia for a number of years.

4. The review applicant explained to the Tribunal he was disappointed in himself for not making contact more often with the visa applicant’s family in Australia, but explained that he also does not “keep up” with his own family. The review applicant told the Tribunal that one of the things he loves about his wife, the visa applicant, is that she is all about family.

5. The review applicant’s lack of demonstrated knowledge about what the Tribunal considers very straightforward details about the visa applicant’s family and the review applicant’s lack of contact with the visa applicant’s family, particularly in the context of most of her family being not only in Australia but in Melbourne, the same city the review applicant lives in, caused the Tribunal significant concern that the review applicant does not have a level of knowledge of and contact with his wife’s family that could be reasonably expected of a person in a genuine spouse relationship in the review applicant’s circumstances.

6. Similarly, the Tribunal found the visa applicant’s knowledge of and relationship with the family of her husband, the review applicant, is not consistent in the Tribunal’s view of with the applicants’ being in a genuine spouse relationship. The applicants’ gave consistent evidence the review applicant has a brother who is married and a sister who is unmarried. However, the visa applicant told the Tribunal she did not know the name of the wife of the review applicant’s brother, did not know the age of his brother’s step-son and did not know the age of the review applicant’s sister.

7. The visa applicant has met the review applicant’s parents only once in 2019 when the review applicant’s parents travelled to Vietnam for a family re-union to celebrate an aunt of the review applicant’s birthday. The visa applicant told the Tribunal she had only one evening meal with her parents-in-law during their 2019 trip to Vietnam and could not spend more time with the review applicant’s parents due to her own work commitments at the time. The Tribunal enquired of the visa applicant whether she ever spoke to her parents-in-law over the telephone. The visa applicant told the Tribunal she would send greetings to her parents-in-law or enquire about their general well-being through the review applicant. The review applicant told the Tribunal his parents speak Cantonese rather than Vietnamese, so while the Tribunal is surprised by the limited contact between the visa applicant and her parents-in-law it does not draw any negative inference or make any negative findings against the visa applicant in this regard.

8. The visa applicant’s lack of demonstrated knowledge about what the Tribunal considers very straightforward details about the review applicant’s family, caused the Tribunal considerable concern that the visa applicant does not have a level of knowledge of her husband’s family that could be reasonably expected of a person in a genuine spouse relationship in the visa applicant’s circumstances.

9. These aspects of this consideration do not support a finding that the applicants’ are in a genuine spouse relationship.

10. The review applicant told the Tribunal in relation to the degree of companionship and emotional support he draws from the visa applicant that he had found it hard being separated from her and had become depressed at times and used his work to occupy himself. The review applicant told the Tribunal that the visa applicant is always there for him, he can tell her anything, she has shown him the importance of family resulting in him becoming closer to his own family and he hopes her family.

11. The visa applicant told the Tribunal she provides emotional support to the visa applicant and supports his dream of being successful in his business, whilst also reminding him to take care of his health and state of mind and to make a stronger connection with his parents. The visa applicant told the Tribunal she speaks to the review applicant regularly, supports him when he is tired from work and sends him funny video messages to support him emotionally. 

12. The Tribunal accepts the evidence of the companionship and emotional support the applicants draw from each other but gives it little weight when considered in the context of the history of the applicants’ relationship. This history includes the review applicant prioritising other travels, including holidays with friends, over meeting with the visa applicant when there were no travel restrictions in place and the review applicant apparently having taken no action in support of his desire to become closer to the visa applicant’s family, despite the majority of her immediate family living in Melbourne where the review applicant also lives.

13. Apart from the issues noted in the Table, both applicants gave otherwise consistent evidence about their future plans as a couple, including their plans if the visa applicant is not granted the visa, and that they see their relationship as long term one, which the Tribunal accepts.

14. The Tribunal finds that overall the consideration of the nature of the applicants’ commitment to each other does not support a finding that the applicants are in a genuine spouse relationship and in the applicants’ circumstances the Tribunal gives this consideration great weight.

    Any other circumstances of the relationship.

15. The applicants in their separate closing remarks to the Tribunal gave evidence that they love and miss each other, the emergence of the COVID-19 global pandemic has made their separation even harder and has added to the psychological and emotional impacts on them of their separation. The visa applicant also told the Tribunal that but for the emergence of COVID-19 he would definitely have travelled to Vietnam by now to have visited the visa applicant. The Tribunal accepts the applicants’ evidence that they miss each other and find their separation hard and in the applicants’ circumstances gives some weight to the applicant’s claims he would have travelled to Vietnam by now if the COVID-19 global pandemic had not emerged.

16. The Tribunal finds the consideration of any other circumstances of the applicants’ relationship supports a finding that the applicants are in a genuine spouse relationship and the Tribunal gives this consideration some weight.

    Conclusions

17. The Tribunal is satisfied that the parties are married to each other under a marriage that is valid for the purposes of the Act, as required by s.5F(2)(a) of the Act.

18. After considering all the evidence before it and each of the matters set out in r.1.15A(3) above, the Tribunal is not satisfied that, at the time of this decision, the visa applicant and the review applicant:

    ·have a mutual commitment to a shared life as a married couple to the exclusion of all others, as required by s.5F(2)(b) of the Act;

    ·the relationship between them is genuine and continuing, as required by s.5F(2)(c) of the Act;

    ·live together or at least and do not live separately and apart on a permanent basis, as required by s.5F(2)(d) of the Act.

19. The Tribunal finds that the applicants do not meet the requirements of s.5F(2) of the Act at the time of this decision.

20. Therefore, the visa applicant does not meet the requirements of cl.309.221 of Schedule 2 to the Regulations.

    Conclusion

21. For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa and the decision under review must be affirmed.

    decision

22. The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

    Michael Ison
    Senior Member

    Attachment ONE - 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).

    Attachment TWO - Tribunal letter to the applicants’ under s.359A of the Migration Act in relation to apparent inconsistent oral evidence during the Tribunal hearing

    Case number: 1814669

    18 August 2021

    Dear Mr Luu

    INVITATION TO COMMENT ON OR RESPOND TO INFORMATION – MR
    BENJAMIN LUU

    I am writing on instruction from the Member conducting your review, in relation to the
    application for review made by you in respect of a decision to refuse to grant a Partner
    (Provisional) (Class UF) visa.

    Invitation to comment on or respond to information

    In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

    Please note, however, that we have not made up our mind about the information.

    On 10 August 2021 the Tribunal conducted a hearing in relation to your review and received oral evidence from you as the review applicant and from the visa applicant. There were inconsistencies in your and the visa applicant’s oral evidence as detailed below.

    Particulars of information

    The inconsistencies in your and the visa applicant’s oral evidence during the Tribunal hearing were:

Your evidence (review applicant)

Visa applicant’s evidence

The visa applicant is trying to buy a property in Vietnam as your alternate plan if the visa applicant is not granted a Partner visa to come to Australia is for you to live in Vietnam.

The visa applicant did not give evidence she is trying to buy a property in Vietnam and stated if you came to Vietnam to live you would rent a property together.

The visa applicant lived in Ho Chi Minh City with a friend named Phi.

The visa applicant lived in Ho Chi Minh City with Phi who was her younger cousin.

If the visa applicant was granted the Partner visa and came to Australia you would live together in your parents’ house, which you hope to purchase from your parents.

If the visa applicant was granted a Partner visa and came to Australia you would live together in rented accommodation.

The visa applicant in her closing remarks stated her earlier evidence was that you would live in your parents’ house. The Tribunal explained this was not her earlier evidence. The visa applicant responded her earlier evidence about living in rented accommodation related to your joint plans prior to the visa applicant meeting your parents in 2018. The Tribunal does not accept this as a plausible explanation for the visa applicant’s earlier and then change of evidence.

Your evidence (review applicant)

Visa applicant’s evidence

Your parents went to Vietnam in late 2017 or early 2018 for a great auntie’s birthday and family re-union.

The visa applicant met your parents for a meal in Ho Chi Minh City in Vietnam 2019 when they travelled for a holiday.

The visa applicant did not travel to third countries to spend time with you when you travelled overseas because she had tried to get visas for such trips in the past and was not successful.

The visa applicant did not travel to third countries to spend time with you when you travelled overseas because you were travelling for business and the visa applicant did not want to have any effect on your work.

Your brother Warren has a daughter named Evelynne who is a few months old.

Your brother Warren has a step-son named Ethan and a daughter Evelynne who was born a few months ago.

The visa applicant’s brother Bang has a son Alfred who is about 1 year old.

The visa applicant’s brother Bang has a son Andrew who was born in 2021 and is about 6 months old.

The relevance of this information to your review

The Tribunal considers it reasonable to expect that a couple who are in a spouse relationship as that term is defined under the Act and Migration Regulations will have a reasonably consistent recollection of shared important life events and important details about each other’s lives.

The relevance of the inconsistencies in your and the visa applicant’s evidence identified above is that the inconsistencies, collectively or individually, could lead the Tribunal to form the view that you and the visa applicant do not have a reasonably consistent recollection of these shared important life events and important details about each other’s lives. These are matters that the Tribunal considers are relevant to its assessment of whether the visa applicant is your spouse as that term is defined under the Act and Migration Regulations.

The consequences for your review if the Tribunal relies on this information

If the Tribunal relies on the evidence provided by the visa applicant that was inconsistent with the evidence you provided during the Tribunal hearing on the matters listed above, or some of them, then the Tribunal could form the view that the inconsistent evidence relating to matters of shared important life events or important details about each other’s lives indicates that the visa applicant is not your spouse as that term is defined under the Act and Migration Regulations.

The consequence for your review if the Tribunal formed this view is that this would be the reason, or a part of the reason, for the Tribunal to affirm the decision of the delegate that is under review.

You are invited to give comments on or respond to the above information in writing.

Timeframe to give comments or response

Your comments or response should be received by 1 September 2021. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

If you cannot provide your written comments or response by 1 September 2021, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us by 1 September 2021 and you must state the reason why the extension of time is required.

We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

Consequences of not responding to the invitation

If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

If you have any questions, please email [email protected], or contact me on the number listed below, or telephone our national enquiry line on 1800 228 333. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.

Yours sincerely

Arlene Z
For the Registrar

Telephone: [phone]