Mak (Migration)

[2024] AATA 2788

Mak (Migration) [2024] AATA 2788 (24 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Yieu Vai Mak

VISA APPLICANTS:  Mrs Thieu My Tu

Mr Tuan Minh Ly

REPRESENTATIVE:  Mr Tom Ying (MARN: 1173851)

CASE NUMBER:  2016145

DIBP REFERENCE:  BCC2019/5851138

MEMBER:Glynis Bartley

DATE:24 July 2024

PLACE OF DECISION:  Sydney

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

Statement made on 24 July 2024 at 9:24am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – financial, household and social aspects of relationship and nature of commitment – valid but small, casual wedding – regular money transfers – no notifcation to Centrelink or review applicant’s family and friends – vague and inconsisent evidence of living arrangements – review applicant’s separate travel to another country – review applicant’s difficulty remembering and both parties’ inconsistent oral and documentary evidence, and lack of knowledge of important aspects of the other’s life – member of family unit young adult child – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65, 359AA
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cl 309.211(2), 309.221, 309.311

CASE
He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS

ISSUE

1. The issue in this review is whether the first named visa applicant (the visa applicant), Mrs Thieu My Tu, is the spouse of the sponsor, Mr Yieu Vai Mak, as defined in s 5F of the Migration Act 1958 (the Act).

   APPLICATION FOR REVIEW

2. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s 65 of the Act.

3. The visa applicant applied for the visa on 19 November 2019 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.

4. The delegate refused to grant the visas on 30 September 2020 on the basis that the visa applicant did not meet cl.309.211(2) of the Regulations. The delegate was not satisfied that the visa applicant was the spouse of the review applicant, as defined in s 5F of the Act.

5. The review applicant applied to the Tribunal for review of the delegate’s decision on 2 November 2020. He attached a copy of the delegate’s decision to the application.

6. The review applicant appeared before the Tribunal on 22 July 2024 to give evidence and present arguments. The Tribunal also received oral evidence by video conference from the visa applicant. The Tribunal was assisted by an interpreter in the Cantonese language.

7. The review applicant was represented in relation to the review by his registered migration agent. An associate from the migration agent’s firm attended the hearing.

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

   BACKGROUND

9. The review applicant is a 70-year-old Australian citizen by grant. He was born in China and later moved to Vietnam. In 1982, the review applicant migrated to Australia from Vietnam. He has declared one previous marriage that ended in divorce. The review applicant has two adult sons from that relationship, both of whom live in Australia. The review applicant sponsored his first wife to migrate to Australia from Vietnam. He is retired and receives a Centrelink aged pension.

10. The visa applicant is a 54-year-old citizen of Vietnam. She has declared one previous marriage, which ended in divorce. The visa applicant has two adult sons from that relationship, now aged 27 and 21 years. The visa applicant’s eldest son is currently living and studying in Australia. Her younger son is included in the application as a secondary applicant. The visa applicant travelled to Australia from 1 August to 15 October 2023 after being granted a Visitor visa (Subclass 600).

11. The review applicant and the visa applicant (the parties) stated in the application that they were introduced by the visa applicant’s older sister, who is a friend of the review applicant’s as they attend the same church in Hurstville. The parties began communicating online in January 2019 and first met in person in Vietnam in June 2019. They became engaged on 2 August 2019 and were married in Vietnam on 1 October 2019.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. Prior to the hearing, the review applicant’s representative submitted additional documents to support the application, including but not limited to the following: money transfer receipts, photographs, statements by witnesses, medical reports regarding the review applicant, submissions by the review applicant’s representative, a WeChat history, a copy of the parties’ marriage certificate, and a copy of the visa applicant’s ticket to Australia in 2023.

13. In making my decision, I have had regard to the Department and Tribunal files and the oral evidence at the hearing.

14. During the hearing, the review applicant appeared to have some difficulty remembering some relatively recent events, for example whether he travelled to Hong Kong in 2023 or earlier this year. He told me that he has problems with his memory due to his age. While there was no medical or other independent evidence submitted to support the review applicant’s claim regarding his memory problems, his presentation was generally consistent with his assertion.

15. There were numerous inconsistencies in the parties’ oral evidence at the hearing, and also with the documents submitted to support the application. I put the review applicant’s recent trip overseas, evident from his Departmental movement records, and the discrepancies in the parties’ oral evidence to him at the hearing in accordance with  s 359AA of the Act, as follows:

    ·The review applicant’s movement records show that he travelled overseas for around two weeks in April/May 2024. He gave oral evidence that he went to Hong Kong to visit his older brother and go sightseeing. The review applicant said he did not tell the visa applicant about the trip.

    ·The review applicant gave oral evidence that the visa applicant has five siblings, including two sisters living in Vietnam. The visa applicant said she has three siblings; an older sister in Vietnam died during the COVID-19 pandemic. The visa applicant said she does not currently have any siblings living in Vietnam.

    ·The review applicant gave oral evidence that he has two older brothers; one living in Australia and the other living in Hong Kong. The visa applicant said the review applicant had one older brother living in Hong Kong, but he died a few years ago.

    ·The review applicant gave oral evidence that the visa applicant has not met his two sons and he has not told them about the parties’ marriage. The visa applicant said she met both of the review applicant’s sons when she was in Australia in 2023.

    ·The review applicant said the visa applicant stayed with her sister while she was in Australia and came backwards and forwards to his home during the daytime while his sons were at work. In contrast, the visa applicant said she mostly stayed with the review applicant when she was in Australia in 2023, although she spent some nights at her sister’s home.

    ·In their relationship statements provided to the Department and the Tribunal, the parties said that they were introduced by the visa applicant’s older sister and that the review applicant knew her through church. In contrast, at the hearing the review applicant said he met the visa applicant’s sister at a club. The visa applicant gave oral evidence that the review applicant met her sister playing badminton.

    ·The review applicant gave oral evidence that the visa applicant’s family paid for the parties’ wedding banquet. The visa applicant said the review applicant paid for the wedding banquet.

    ·The review applicant said that his sons have not met the visa applicant’s eldest son and are not aware that he is living and studying in Australia. The visa applicant said her eldest son is very busy, but he sometimes speaks with the review applicant’s sons by telephone.

16. The review applicant consulted his representative and declined the offer for additional time to provide a written response after the hearing to the matters raised in accordance with        s 359AA of the Act. In his oral response, the review applicant confirmed that he did not tell the visa applicant about his trip to Hong Kong earlier this year. He then said he would prefer not to respond to the other discrepancies identified. The review applicant said the visa application and appeal process has been very long and he would prefer to receive an outcome as soon as possible. The review applicant gave oral evidence that he does not mind whether the application is successful or not.

17. I have placed weight on the review applicant’s movement records and the discrepancies in the oral evidence at the hearing. The review applicant did not attempt to explain the matters raised in accordance with s 359AA of the Act. I did not find either party to be credible and have therefore placed limited weight on their oral evidence unless corroborated by a more reliable source. The visa applicant in particular did not present as being truthful. I did not accept her claims that she has met the review applicant’s sons, or that she lived with the review applicant when she came to Australia in 2023. In relation to those matters, I preferred the review applicant’s oral evidence.

    Whether the parties are in a spouse or de facto relationship

18. Clause 309.211(2) requires that, at the time the visa application was made, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. With limited exceptions that only apply in relation to a decision to grant or not grant a Subclass 309 visa made on or after 20 August 2022, the visa applicant must continue to be the spouse or de facto partner at the time of the Tribunal’s decision: cl.309.221. In the present case, the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

19. ‘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). 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 reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

20. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. There was no evidence before me to cast doubt on the validity of the parties’ marriage in Vietnam on 1 October 2019, and it was not disputed by the delegate. Consequently, in the absence of any evidence to the contrary, I find that 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?

    Financial aspects of the relationship

21. The parties do not have any joint assets, debts or owe legal obligations to one another. The review applicant receives a Centrelink aged pension, owns his own home and has around AU$200,000 in savings. The visa applicant is employed and also has some savings ($1 billion VND  - or around AU$60,000). The visa applicant was aware of the review applicant’s income and that he owns his own home. The review applicant knew that the visa applicant owns her own home and the nature of her employment. However, he gave oral evidence that he has never asked her about her income or savings.

22. I accepted that the review applicant has been transferring money to the visa applicant at regular intervals since their marriage. He was unsure of the total amount but said he generally sends around AU$200 per month. The review applicant said he had never asked the visa applicant what she uses that money for. The visa applicant told me that she spends some of the money on day-to-day expenses and saves whatever is left over.

23. I was not satisfied on the evidence before me that the parties have ever shared their day-to-day household expenses or pooled their financial resources. I was not persuaded that they have any intention of pooling their financial resources in the future.

24. Overall, I find that the financial aspects of the relationship do not support a finding that the parties are in a genuine and continuing spousal relationship.

    Nature of the household

25. The parties told me that they lived together in Vietnam when the review applicant travelled there in 2019. That evidence was vague and unconvincing. Importantly, the parties gave inconsistent oral evidence regarding their living arrangements in Australia in 2023. Given my concerns about the reliability of their oral evidence, I was not persuaded that the parties have ever lived together in the same home or established a joint household. I do not accept their claim that they have shared household chores, including cooking and laundry. It was uncontested that the parties do not have any joint responsibility for the care and support of children.

26. The nature of the household aspect of the relationship does not support a finding of a genuine and continuing spousal relationship.

    Social aspects of the relationship

27. I accepted that the parties held a small celebration after their wedding and invited some of the visa applicant’s friends and family members. The photographs show a remarkably casual event. For example, most guests, including the review applicant, were wearing T-shirts. Both parties explained that they wanted a simple celebration because they are older and have been married before. That evidence was unconvincing given the importance of the occasion. The review applicant was unable to identify any of the guests from the photographs taken at the wedding banquet. He conceded that the photographs were taken to support the application. Significantly, the review applicant could not identify Ms Quan Tu Anh from a group photograph of the guests at the wedding banquet, although Ms Quan Tu Anh claimed in a statement, dated 23 July 2020, that she attended the event. The review applicant said he did not know anyone at the wedding banquet and did not ask the visa applicant to introduce them to him.

28. The review applicant gave oral evidence that he has not told his sons, brothers or friends about the parties’ relationship or marriage. In response to questioning about this, the review applicant explained that he was not confident that the application would be successful. Therefore, he did not think he should disclose the marriage. Furthermore, he did not want to bother his sons with his personal affairs. The review applicant’s representative submitted prior to the hearing that the parties’ four sons are supportive of the relationship. I do not accept that submission because the review applicant’s sons are unaware of it.

29. As noted above, there was inconsistent oral evidence regarding how the review applicant knew the visa applicant’s sister, Ms Tran Tu. The visa applicant’s sister provided a statutory declaration to the Department, dated 30 October 2019, and a statement to the Tribunal, dated 9 June 2023. In both, Ms Tu claimed that she attended the same church as the review applicant. However, the review applicant gave oral evidence at the hearing that he does not attend church and actually met the visa applicant’s sister at a club. I have placed limited weight on the evidence from Ms Tran Tu because it contradicts the review applicant’s oral evidence. I do not accept that the review applicant met Ms Tu at church, as claimed.

30. The review applicant had difficulty recalling who Ms Ha Lopez is when asked about her during the hearing. Ms Lopez claimed in a statutory declaration to the Department, dated 30 October 2019, and said she has known the review applicant for almost 19 years. However, the review applicant said Ms Lopez is a friend of the visa applicant’s sister, Ms Tu.

31. The visa applicant’s eldest son, Mr Ly Tuan Chi, provided a statement to the Tribunal, dated 9 June 2023. He claimed that he visits the review applicant every weekend to assist with household chores, such as vacuuming and gardening. I do not accept that assertion because it is contrary to the review applicant’s oral evidence that the review applicant arranges to see the visa applicant’s eldest son away from his home because his sons have not been told about the parties’ relationship or marriage. I put limited weight on the statement by the visa applicant’s eldest son as I do not consider it to be reliable.

32. The review applicant acknowledged that he has not advised Centrelink of the marriage and said he was not aware of the obligation to do so. He said the only people who have been told about the parties’ relationship and marriage are those that needed to know for the purposes of completing paperwork to support the application for the visa.

33. The parties claimed during the hearing that they enjoy going out to restaurants together. I accepted that they have socialised at restaurants in both Vietnam and Australia because photographs confirm that evidence. They have also been sightseeing together in Sydney, for example to the Opera House. Most of the photographs provided show them alone rather than with friends and family members. I accepted that the visa applicant visited the review applicant in hospital and at his home when she travelled to Australia in 2023. Photographs provided to the Tribunal support the parties’ oral evidence about those visits.

34. I was not satisfied that the parties represent themselves to other people as being married to each other. The review applicant openly acknowledged that he has actively concealed the relationship from his friends and family. For example, he ensured that the visa applicant only visited his home when she was in Australia in 2023 when his sons were at work. The veracity of the statutory declarations and statements from witnesses was undermined by the review applicant’s oral evidence during the hearing. I put limited weight on the evidence from supporting witnesses as I do not consider that it is reliable.

35. The social aspects of the relationship do not support a finding of a genuine and continuing spousal relationship.

    Nature of the persons’ commitment to each other

36. The parties have been married for almost five years. I was not persuaded that they have ever lived together in the same household.

37. The review applicant’s representative submitted prior to the hearing that the parties communicate daily on WeChat. However, the review applicant travelled to Hong Kong in April/May 2024 to visit his brother and go sightseeing but did not tell the visa applicant about the trip. This indicates that the parties do not communicate as frequently as claimed or share important information about each other’s lives. The review applicant could have visited the visa applicant in Vietnam during his holiday but did not prioritise spending time with her.

1. I do not accept that the parties provide one another with emotional support or companionship. They were unaware of important aspects about each other’s families, for example how many siblings each has. The visa applicant was unaware that the review applicant has two older brothers, with whom he has some contact. The review applicant did not know that one of the visa applicant’s older sisters died in Vietnam during the COVID-19 pandemic, despite her death occurred after the parties’ marriage.

2. The parties’ oral evidence about their plans for the future was vague and unconvincing. They claimed that the visa applicant would live with the review applicant, but do not appear to have discussed whether or not she will work. The parties do not appear to have given any real consideration to the living or study arrangements of the visa applicant’s youngest son. The review applicant’s representative submitted that the parties intend to have a small yet intimate wedding ceremony in Australia, preferably at the review applicant’s church. That claim was unconvincing in light of the review applicant’s oral evidence that he does not attend church.

3. As outlined above, there were numerous discrepancies in the parties’ oral evidence, including about the visa applicant’s living arrangements when she travelled to Australia on a Visitor visa in 2023. It was clear from the evidence at the hearing that the review applicant has actively concealed the parties’ relationship from his sons, including by spending time with his eldest stepson away from his home. I consider it significant that the review applicant’s sons, brothers and friends have not been told about the parties’ marriage, particularly as they have been married for almost five years. The review applicant’s decision to keep the relationship secret is a strong indication that he is not genuinely committed to the parties having a shared future together.

4. During the hearing, the review applicant expressed concern about the length of the review process and indicated that he would like to find another wife if the current application is unsuccessful. On more than one occasion, the review applicant said that he does not mind whether the application is successful or not. He presented as being minimally committed to the parties’ relationship.

5. The review applicant acknowledged during the hearing that he had not asked the visa applicant about her income or savings. He said he has no idea what the visa applicant’s younger son is studying at university. The review applicant had some difficulty remembering the names of the visa applicant’s two sons, although this may be due to age-related memory problems.

6. Overall, the parties have not displayed the degree of emotional support and companionship which would be expected in a genuine and continuing relationship. I was not satisfied that the parties see the relationship as long-term.

   Conclusions on spouse/de facto criteria

7. Given the above findings, I was not satisfied that at the time the visa application was lodged and at the time of this decision the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing. The parties do not live together, and I was not satisfied that they will live together in the future. I therefore find that the visa applicant does not meet the definition of ‘spouse’ in s 5F(2)(b)-(d) at the time the visa application was made and at the time of this decision. As the parties were married at the time of application, the visa applicant cannot satisfy cl.309.211(3). As the visa applicant does not meet the definition of spouse, she does not meet the requirements of cl.309.211 and cl.309.221.

8. For the reasons above, I find that the visa applicant does not satisfy the criteria for the grant of the visa.

   Secondary applicant

9. For the secondary applicant to be entitled to a visa under cl.309.311, he must be a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in subdivision 309.21. As the Tribunal has found that the visa applicant does not meet cl.309.211, the secondary applicant does not meet the requirements of cl.309.311.

   DECISION

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

    Glynis Bartley
    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).