Ly (Migration)

[2022] AATA 4339

Ly (Migration) [2022] AATA 4339 (6 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Hao Minh Ly

VISA APPLICANTS:  Mrs Thi Dieu Hong Le
Mr Quoc Thien Nguyen

REPRESENTATIVE:  Mr Linh Minh Tran (MARN: 0958538)

CASE NUMBER:  2017688

DIBP REFERENCE(S):  BCC2020/1864985

MEMBER:Peter Emmerton

DATE:6 September 2022

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 309 visa:

·cl 309.211 of Schedule 2 to the Regulations

·cl 309.221 of Schedule 2 to the Regulations

·The Tribunal finds that the secondary applicant’s application should be considered in the context of the delegate’s decision regarding the primary applicant satisfying the remaining criteria for a subclass 309 visa decision.

Statement made on 06 September 2022 at 12:49pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – financial aspects – nature of the household – social aspects – nature of the commitment – immigration history – decision under review remitted

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

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 30 October 2020 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant (the visa applicant) applied for the visa on 7 July 2020 on the basis of their relationship with their sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because they were not satisfied that the couple were in a genuine spousal relationship.

4. The review applicant appeared before the Tribunal on 6 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence in person from Mr Thu Van Do and via video from the visa applicant, Ms Thi Dieu Hong Le and her son Mr Quoc Thien Nguyen.

5. The Tribunal was presented with a Non-disclosure Certificate under S.376, dated 4 January 2021. It has been disregarded. The information is unavailable to the Tribunal because an English language translation of the document which is written in the Vietnamese language was not provided by the Department. The information contained in the document is inaccessible and therefore has not been considered by the Tribunal when assessing this case. This was relayed to the applicants and the representative at the hearing.

6. The review applicant was represented in relation to the review.

7. The review was conducted with the assistance of a translator fluent in the Vietnamese and English languages. The witness, Mr Thu Van Do, also assisted the Tribunal with interpreting the review applicant’s communications as he is profoundly deaf, does not use any conventional verbal or sign languages and his functional literacy is poor.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the couple is in a genuine spousal relationship as defined by section 5F of the Act.

10. In determining the applicants’ claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their individual circumstances.

11. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the Department.

    Whether the parties are in a spouse or de facto relationship

12. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

13. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.

    Are the parties validly married?

14. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The delegate accepted a Marriage Certificate as evidence that the couple were legally married. The Certificate registration is dated 10 June 2019, issued by the Socialist Republic of Vietnam. The Tribunal also accepts this evidence and has viewed the documents and certified written translation. 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).

15. The Tribunal notes a valid Divorce Certification pertaining to the visa applicant dated 29 August 2018, issued by the Socialist Republic of Vietnam.

    Are the other requirements for a spousal relationship met?

16. In forming an opinion whether they are in a spousal relationship, consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects, 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 which is attached to this decision.

17. The applicant lodged a valid application for a Class UF Partner (Provisional) and BC Partner (Migrant) visa on 7 July 2020 on the grounds of being in a spousal relationship with an Australian citizen, Mr Hao Minh Ly.

18. The visa applicant is a female Vietnamese national by birth, who has declared 1 previous marriage relationship and subsequent divorce with 1 dependent child.

19. The sponsor is an Australian citizen, who has declared no previous married relationships with no children.

20. The department has declared the DOB of the sponsor and the DOB of the applicant. The Tribunal accepts this as fact and therefore it is agreed that both parties have met personally since turning 18.

21. Both the visa applicant and the sponsor are therefore greater than 18 years of age.

22. It is claimed that the couple first met each other via an introduction by the visa applicant’s neighbour and sponsor’s younger brother, in early September 2015 in Kien Giang, Vietnam. The couple claim to have begun communicating and soon after, confessed to how they felt for each other. The sponsor and applicant introduced each other to their friends and family, and the relationship was strongly supported by relatives and friends from both the sponsor and applicant’s side. This was canvassed during the hearing.

23. The couple got engaged on the 20 September 2015 and held their traditional engagement ceremony, and on 1 November and 2 November 2015, the couple hosted two wedding ceremonies in the presence of loved ones

24. The departmental travel records verify the claimed travel.

25. It was asserted and it was accepted by the Tribunal, the reason the sponsor had not travelled to see his wife between 2017-2019 was because of financial hardship. The Tribunal considers this plausible considering the sponsor is supported by a Disability Support payment and had applied for a Fee Reduction on the AAT review. The Covid-19 pandemic has further complicated this with the border closures and the high infection rate in Vietnam. Travel to Vietnam still incurs infection risk.

26. According to departmental records the visa applicant has not travelled to Australia. This was corroborated at the hearing.

27. The Tribunal has considered the documentary evidence provided to the Department and the Tribunal. The Tribunal has in addition had the benefit of taking considerably more evidence from the sponsor prior to and at the hearing, evidence from the visa applicant and the witnesses Mr Do and Mr Nguyen.

28. The following evidence, in addition to the documentation provided to the delegate and the department was provided to the Tribunal prior to the hearing.

    ·Representatives’ submissions of 27 August 2022

    ·Review Applicants’ Passport, drivers licence, pension concession card copies

    ·Statement of Thi Dieu Hong Le 2 July 2021

    ·Statement of Witness. Thu Van Do, 17 April 2020

    ·Household documents of Vietnam, with joint letter envelope copies

    ·Statutory declaration of Thanh Huong DO, 6 May 2020

    ·Statutory declaration of Thu Van DO 7 May 2020

    ·Statement to Department of Thi Dieu Hong Le 20 April 2020

    ·Divorce documents of Thi Dieu Hong Le and Thanh Sang Nguyen 6 May 2019

    ·Marriage Certificate of review applicants 10 June 2019

    ·Photographs and travel itinerary to Vietnam, April-June 2019

29. The Tribunal found those presenting evidence to be credible and persuasive witnesses. Answers were provided in what appeared to be an honest and candid fashion without any apparent obfuscation or collusion and the Tribunal noted the emotional responses of the sponsor and the witness Mr Do.

30. The Tribunal has considered all aspects of the relationship.  

31. The Tribunal has determined that there is a demonstrated clear mutual commitment to a shared life together. This is initially indicated through the fact the couple are married and they have declared their marriage to a government body in both Vietnam and Australia. It is also indicated through the fact that despite being separated for 3 years, the review applicant and visa applicant appear to have remained mutually committed to each other. They state that their love for each other is as strong as ever and has survived the time they have been forced to spend apart. They explained the ongoing daily use of electronic video communication technology has been important in achieving this.

32. The Review Applicant and Primary Visa Applicant displayed a consistent understanding of each other’s lives and show a genuine mutual interest in one another. They appear to support one another in all aspects of their life, that is, financially, socially, and emotionally in-spite of the limitations imposed by distance. This was reinforced by the written statements and statutory Declarations provided prior to the hearing. The relationship is in the view of the Tribunal both genuine and continuing.

33. There is no evidence before the Tribunal that the visa applicant and the review applicant have any intention to live separately apart on a permanent basis. The current separation was imposed upon them by the confluence of the Covid 19 pandemic and the visa refusal by the Department.

    Financial Aspects of the Relationship

34. In relation to the financial aspects of the relationship between the applicant and the sponsor, the Tribunal has considered joint asset ownership, joint liabilities, pooling of financial resources, legal obligations and the sharing of daily household expenses.

35. In relation to any joint ownership of real estate or other major assets, the Tribunal has determined that the couple do not jointly own any major assets or real estate. This is not in the opinion of the Tribunal unusual for a couple of modest means, currently housed in two different countries, planning to live together in Australia.

36. The Tribunal accepts the documented evidence, (a substantial range of money transfer receipts emanating from Adelaide South Australia), that the review Applicant has assisted the primary visa applicant’s expenses via some substantial money transfers post marriage for several years. The Tribunal accepts the evidence that the visa applicant and the sponsor are modestly financially secure and independent. Verbal evidence supporting money transfers was proffered by the sponsor and the visa applicant during the hearing.

37. The Tribunal notes that the review applicant has some substantial disabilities and as a direct result relies upon a Disability Support Pension. The Tribunal has considered the proportion of his meagre funds that are sent to his wife on a regular basis and has concluded that this is a proportionally substantial financial commitment. The Tribunal was informed that the sponsor has recently been provided with a Housing Trust property. 

38. The Tribunal received no evidence that the couple have any joint liabilities.

39. The Tribunal accepted evidence from the couple that the visa applicant and sponsor are currently saving for their life together when she relocates to Australia.

40. The extent of any pooling of financial resources, especially in relation to major financial commitments. The Tribunal again notes, that money transfer receipts were presented demonstrating a substantial amount of money transferred from the sponsor to the visa applicant. It also appreciates that it is not possible to establish a joint bank account with a foreign national, even if she is his wife, as a direct result of Australia’s appropriately stringent “money laundering” legislation.

41. Whether one person in the relationship owes any legal obligation in respect of the other. The Tribunal has determined that aside from the usual legal obligations associated with a marriage, the couple have not provided any evidence to indicate any additional legal obligations.

42. The basis of any sharing of day-to-day household expenses. The Tribunal acknowledges that the couple have lived apart for a considerable period of time post marriage and will continue to do so until the review applicant is able to bring his wife to his home in Australia. Therefore, there is little verifiable evidence of day to day sharing of household expenses aside from the financial contribution made by the sponsor to his wife, coupled with the statements made by both parties relating to the financial support issue.

43. In addition, verbal evidence was given by the visa applicant and the review applicant that when the review applicant was in Vietnam, the sponsor took responsibility for the travel and accommodation / day to day costs. The Tribunal accepts this evidence as factual and has no evidence before it to the contrary.

44. The Tribunal places substantial weight on the evidence in support of the financial aspects of the relationship, whilst accepting the limitations imposed by the ongoing geographic separation.

    Nature of the Household

45. In relation to the nature of the household aspects of the relationship between the applicant and the sponsor, the Tribunal has considered the following.

46. Any joint responsibility for the care of children. The Tribunal notes that the couple have not commenced a family at this stage. The visa applicant has independently raised a dependent child, Mr Quoc Thien Nguyen whose current age is approximately 20. It was clear from questioning the couple individually, that future planning has not been focussed upon having children as a couple although it has been discussed. It accepts and is sympathetic to the fact that there are biological realities associated with their aging. Their individual views regarding having children appeared compatible and similar.

47. The living arrangements of the visa applicant and the sponsor were discussed. The couple have principally been separated by geography post their marriage for substantial periods of time. The separation is not of their making as previously stated. However, when the opportunity arose for cohabitation, it has occurred. This was as stated previously, corroborated by written witness statements, Statutory Declarations and verbal statements given at the hearing.  In addition, the Tribunal has been furnished with Temporary Residence Registration documents required by the local authorities when the sponsor was visiting his wife in Vietnam. The Tribunal accepts all of this evidence as accurate and has no evidence before it which would indicate the contrary view.

48. Any sharing of responsibility for housework. The Tribunal notes little opportunity has existed to share household responsibilities other than during their brief cohabitations in Vietnam when the sponsor has travelled to be with his wife. It is not possible to verify this although the Tribunal is inclined to accept the statements in regards to this fact, as accurate.

49. The Tribunal enquired as to the relationship between the sponsor and the visa applicant’s son. It was provided with complimentary response that reassured it that here was both mutual respect and a bond.

50. The Tribunal places moderate weight on the cumulative evidence presented in relation to the nature of the household due to the extraordinary external circumstances inflicted upon the couple.

    Social Aspects

51. In relation to the social aspects of the relationship between the applicant and the sponsor, the Tribunal has considered the following.

52. The review applicant and primary visa applicant claimed that they present themselves to society as a married couple and as a couple in a committed relationship. The Tribunal has formed the view that this is reasonable to accept from the fact that the review applicant and primary applicant have provided photographic evidence of themselves in a diverse range of social settings in the presence of immediate family and friends as well as their travel pictures. The Tribunal has carefully examined all the photographs, including those showing the couple’s celebration of their marriage. This was further reinforced by the visa applicant’s son and the best friend of the sponsor and witness Mr Do.

53. The Tribunal notes and accepts as fact that the couple have been unable to spend much time together due to the travel restrictions imposed by the Covid-19 pandemic. This has naturally made it difficult to amass large quantities of evidence over substantial time periods demonstrating social engagement.

54. It also accepts the explanation provided that the bulk of the photographs taken at the wedding celebrations were lost because the device utilised is unattainable. They have attempted to gather what relevant photographs exist from guests present. It is illogical to falsify a small number of photographs knowing a lack of photographic evidence would be questioned, when it would be a simple exercise to synthesise additional photographs if needed. The Tribunal believes the photographs that survive demonstrating the wedding and celebrations are genuine.

55. The Tribunal’s knowledge of Vietnamese culture suggests that a second marriage for a mature aged woman with a child approaching adulthood, to a man of senior years is likely to be a relatively informal celebration albeit a large gathering of 300 guests. The evidence presented supports this perception.

1. They claim that in the visa applicant’s community and family in Vietnam, as well as in the relevant community and family in Australia, the couple are known to be a married couple.  This is demonstrated in the Statutory Declarations and statements presented to the Tribunal prior to the hearing. In the Tribunal’s past experiences of this culture, if the community did not in fact view the couple as married, they would have been shunned for having an affair out of wedlock. This would be particularly poorly viewed by an in situ traditional Vietnamese community.

2. The Tribunal accepts as fact that the couple do not have a wide circle of friends, the groom has travelled with a good friend who assists with his communication but otherwise has no friends in Vietnam. The Tribunal notes in addition that the couple are marrying in a mature phase of their lives.

3. The Tribunal is acutely aware that the review applicant has a somewhat socially restrictive lifestyle due to his disability associated with severe communication challenges resulting from profound deafness, no ability to utilise sign language and his illiteracy. This however should not preclude him from being supported to enjoy the social interactions and accepted norms of the average person without his additional challenges.

4. The Tribunal places moderate weight upon the cumulative evidence provided in support of the social aspects of their relationship in combination with the circumstances of the relationship participants.

   Nature of the Commitment

5. In relation to the nature of the persons’ commitment to each other, the Tribunal has considered the following.

6. The duration of the relationship. The Tribunal was presented with a range of testimony, both verbal and written, clearly showing that the relationship evolved over a substantial time-period from their marriage in 2019, (3 years) and prior to that upon their meeting. Major issues. such as when the relationship commenced, the wedding date, the subsequent living arrangements over time and the understanding of the respective families and friends and their desire to see the couple reunited and have a happy life together, have all been detailed and cross-referenced appropriately with written and verbal evidence.

7. The length of time they have lived together. As previously stated, the couple have not lived together for lengthy periods of time, due to circumstances the Tribunal accepts are out of their control. It accepts that they have lived together as man and wife post the marriage, for the relatively brief periods of time available to them.

8. The degree of companionship and emotional support that the persons draw from each other. The Tribunal was convinced by the testimony of the couple, which was supported by the various Statutory Declarations/statements and witness testimony that the relationship is mutually emotionally nourishing. The demeanour of the visa applicant and the sponsor demonstrated to the Tribunal the emotionally genuine nature of the relationship and the couple’s desire to progress their lives together. The sponsor’s emotional responses were observed by the Tribunal as were the emotions displayed by Mr Do in relation to his friend’s happiness.

9. The Tribunal is in no doubt that substantial mutual emotional support is provided to the visa applicant and the sponsor and accepts that this is likely to continue, into the future when they reunite. Mutually compatible views regarding starting a family were expressed during the hearing.

10. The Tribunal determines that the substantial evidence provided to demonstrate regular ongoing communication between the visa applicant and the sponsor further strengthens the body of evidence supporting the genuineness of this relationship. Evidence was presented to demonstrate to the Tribunal that a range of communication devices and methodologies are regularly employed. This is further corroborated by witness statements and verbal evidence provided by the couple during the hearing.

11. Both the sponsor and the visa applicant were able to demonstrate substantial knowledge about each other, their daily activities, each other’s occupation and their future plans. The Tribunal notes that whilst the couple have a clear understanding and appreciation of each other’s perspective on important issues they didn’t always express an identical view. The couple expressed mutually compatible knowledge regarding each other’s family circumstances and extended family structures and relationships.

12. The Tribunal once again refers to the fact that the couple have been attempting to start a life together for over 3 years, this demonstrates commitment. The challenges associated with the circumstances and stresses were canvassed during the hearing and Tribunal was convinced by the genuineness of the conversations.  

13. The Tribunal accepts the enormous challenges posed by the sponsor’s disabilities. The fact that the couple have successfully worked their way through such major hurdle reassures the Tribunal of their genuine mutual commitment.

14. The Tribunal has reflected upon the commitment of Mr Do who appears to be Mr Ly’s closest friend. It is unlikely that he would have supported him for many years and continued to support him in the current circumstances if he did not believe that the relationship was genuine and substantively positive for his friend. It would not have been an easy journey accompanying his friend to Vietnam and supporting his communication and other assistance needs. Again, the Tribunal believes this continued support is unlikely if Mr Do does not believe in the positive genuine nature of this relationship as it pertains to his friend. He professed his desire to assist the visa applicant and her son to settle successfully in Australia and find work.

15. The Tribunal places substantial weight upon the cumulative evidence provided in support of the couple’s commitment to each other.

16. On the basis of the above, the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made and the time of this decision.

17. Therefore, the visa applicant meets cl.309.211 and cl.309.221.

18. Given the findings above, the appropriate course is to remit the applications for the visas to the Minister to consider the remaining criteria for a Subclass 309 visa.

    DECISION

19. The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 309 visa:

    ·cl 309.211 of Schedule 2 to the Regulations

    ·cl 309.221 of Schedule 2 to the Regulations

    ·The Tribunal finds that the secondary applicant’s application should be considered in the context of the delegate’s decision regarding the primary applicant satisfying the remaining criteria for a subclass 309 visa decision.

    Peter Emmerton
    Member

    
    

    Attachment  - Extract from Migration Regulations 1994

    1.15ASpouse

    (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)       any joint ownership of real estate or other major assets; and

    (ii)      any joint liabilities; and

    (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)     the basis of any sharing of day‑to‑day household expenses; and

    (b)the nature of the household, including:

    (i)       any joint responsibility for the care and support of children; and

    (ii)      the living arrangements of the persons; and

    (iii)     any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)       whether the persons represent themselves to other people as being married to each other; and

    (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)     any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)       the duration of the relationship; and

    (ii)      the length of time during which the persons have lived together; and

    (iii)     the degree of companionship and emotional support that the persons draw from each other; and

    (iv)    whether the persons see the relationship as a long‑term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).