Ngo (Migration)

[2017] AATA 1473

Ngo (Migration) [2017] AATA 1473 (24 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr The Duong Ngo

CASE NUMBER:  1618128

DIBP REFERENCE(S):  CLF2012/137560 CLF2015/47457

MEMBER:Kate Timbs

DATE:24 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 24 August 2017 at 4:07pm

CATCHWORDS

Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – Genuine and continuing partner relationship – Federal Circuit Court remittal – Sponsor declined two hearing offers – Not in a married relationship

LEGISLATION

Migration Act 1958, ss 5F. 65, 376

Migration Regulation 1994, Schedule 2, cl 801.221, r 1.15

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 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under section 65 of the Migration Act 1958 (the Act).

2. Mr Ngo applied for the visa on 5 July 2012 based on his relationship with Ms Thi Quynh Phan who is an Australian citizen. The delegate refused to grant the visa on 28 July 2015. Mr Ngo applied for review of the decision on 3 August 2015.

3. On 18 July 2016, the Tribunal heard the application (the first hearing) and affirmed the decision under review. On 25 October 2016, the Federal Circuit Court set aside the Tribunal’s decision and remitted the application for review to the Tribunal for reconsideration.

4. The Tribunal (differently constituted) heard the application again on 25 July 2017.

   RELEVANT LAW AND ISSUES FOR THE TRIBUNAL TO DETERMINE

5. The relevant law is in the Act and the Migration Regulations 1994 (the Regulations). For the visa to be granted, Mr Ngo must satisfy the criteria in part 801 of Schedule 2 of the Regulations.

6. On 17 September 2013, another delegate of the Minister granted Mr Ngo a Partner (Temporary) (subclass 820) visa based on him being the spouse of Ms Phan. To satisfy clause 801.221(2), Mr Ngo must (among other things) continue to be Ms Phan’s spouse at the time of this decision. To deal with his review, the Tribunal considered whether that was the case.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence considered

7. The Tribunal considered documents in the Department’s visa application file and documents provided by Mr Ngo to the Tribunal for the first and second hearings. The Tribunal listened to the record of oral evidence given at the first hearing and heard evidence from Mr Ngo, Mr John Van Nguyen and Mr Tien Dung Ngo. Mr Vinh Quang Duong, migration agent, represented Mr Ngo and made submissions at hearing.

8. On 27 June 2017, the Tribunal Registry notified Mr Duong of the date and time for the hearing. On 13 July 2017, Mr Duong requested an adjournment. He told the Tribunal that Ms Phan was unavailable because she was in New Zealand and that Mr Ngo was unprepared for the hearing because he had only recently received Mr Duong’s email to him about the hearing. The Tribunal refused the request. It advised it could contact Ms Phan by telephone in New Zealand and that it would allow additional time after the hearing for submissions, if that were necessary. Mr Duong then provided a statement from Mr Ngo advising Ms Phan had returned from New Zealand and that she could not attend the hearing because of work commitments. However, he said she would be available to speak to the Tribunal by telephone.

9. Ms Phan did not answer her telephone and the Tribunal adjourned the hearing until 25 July 2017 to give Ms Phan an opportunity to provide evidence to support the application. She did not attend the resumed hearing. The Tribunal advised Mr Ngo it would consider any further request for a resumed hearing within the following 21 days. It proceeded to make its decision more than 28 days later when it did not receive any further correspondence from Mr Ngo.

   Spouse relationship

10. Section 5F of the Act provides that a person is the spouse of another if they are in a married relationship. To be in a married relationship:

    ·they 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.

11. When forming an opinion, the decision maker must consider all of the circumstances of the relationship and, in particular, the financial and social aspects and the nature of the parties’ household and their commitment to each other (regulation 1.15A(3)).

    Background

12. Mr Ngo said his aunt and Ms Phan’s mother are long-term friends and he met Ms Phan when he went with his aunt to her sister’s birthday party in early 2010. He said that they went out to Darling Harbour together before she returned to the UK to finish her studies. He said they talked to each other often by social media and they met again when she returned to Australia for a few weeks in August 2010 and spent more time together. He said they decided they would be girlfriend and boyfriend. He said they spoke every couple of days while she was in the UK completing her degree for about a year and a half and that he kept in touch with her family in Australia.

13. Ms Phan returned to Australia in March 2012 and Mr Ngo said that he proposed to her a few weeks later. They married in a civil ceremony in May 2012. His evidence is that they have lived as a married couple since then and continue to do so.

    Nature of the household

14. Mr Ngo said that they have lived in a three-bedroom home rented by her mother since May 2012. He said he and Ms Phan share a room and his mother and one of her cousins have the other two bedrooms. He said he does the tidying and cleaning and that his mother-in-law and wife do the cooking. There are no children in the household.

    Financial aspects

15. Mr Ngo and Ms Phan both work full-time and their salaries go into separate bank accounts. His wages go into a joint account and Ms Phan’s wages go into an account in her name. He said they share the household expenses with her mother and cousin. He said the arrangement is that he pays rent to her mother for both of them, Ms Phan pay for the utilities and they each buy food and groceries.

16. Mr Ngo said that they are planning to buy a house in the future but gave inconsistent evidence when asked about savings. He said they had saved about $30,000 to $40,000. When asked for details, he said that he has no savings and that Ms Phan has about $10,000. He then said they will try to save for a house but they do not have a savings plan at present.

17. Mr Ngo and Ms Phan have no significant joint assets and there is no evidence of joint liabilities or legal obligations to each other.

    Social aspects of the relationship

18. Mr John Van Nguyen is the husband of Mr Ngo’s cousin and Mr Tien Dung Ngo is a friend of his family in Vietnam. Their evidence was consistent with Mr Ngo’s evidence that he and Ms Phan represent themselves as a married couple and are considered to be a married couple by their friends, family and associates. They said they see them regularly and socialise with them.

19. Mr Ngo told the Tribunal that they do not socialise often because he works long hours. He said they sometimes go out together to clubs on their own, or with friends. He said they have been on short holidays in Australia but he did not go with Ms Phan on longer holidays to Europe and to New Zealand and could not go to Vietnam with her to visit her father when he was ill.

    Nature of persons' commitment to each other

20. Mr Ngo’s evidence is that they have had a lengthy relationship since 2012 and have lived happily as a married couple since they married in 2013. He said they spend time together each day after work and provide each other with company and emotional support. He claims that they see the relationship as long-term but said that they had a dispute because of the stress of the Tribunal hearing and that Ms Phan was unwilling to give evidence for a second time.

21. The Tribunal told Mr Ngo that, for him to meet the relevant criterion, it must be satisfied he and Ms Phan have a mutual commitment to a shared life as husband and wife. It suggested that would be difficult if Ms Phan does not also tell the Tribunal that is the case. As noted, she did not attend either hearing day and she did not provide any evidence about her commitment to the relationship in the weeks after the hearing.

22. Mr Ngo and Ms Phan might have been living happily in a spousal relationship until shortly before the hearing, as claimed by Mr Ngo, and the Tribunal accepts attending a hearing to answer questions about your personal life is stressful. It might well give rise to conflict in a relationship. However, the Tribunal allowed significant time for any temporary conflict to be resolved and, in its view, Ms Phan would not be unwilling to attend the hearing if she were currently committed to sharing her life with Mr Ngo as his wife. It infers she did not give evidence to the Tribunal because she no longer supports his application for review because she is not in a loving relationship with him that she sees as long term at the time of this decision.

    CONCLUSION

23. The Tribunal takes account of the evidence outlined above about the financial and social aspects of the relationship and the nature of the household that Mr Ngo says that he shares with Ms Phan. It notes that evidence was corroborated to some extent by documentary evidence and by the evidence of the witnesses on the first day of hearing. However, while they might have had a married relationship in the past, without evidence from Ms Phan, the Tribunal does not accept that they are now living together as husband and wife. The Tribunal is not satisfied Ms Phan is committed to sharing her life with Mr Ngo as husband and wife or that any genuine relationship they had in the past is continuing. In that case, they are not in a married relationship at the time of this decision and Mr Ngo is not her spouse. It follows he does not meet the criterion in clause 801.221(2).

24. For completeness, the Tribunal finds Mr Ngo has no children; that there is no evidence of family violence and there is no question that Ms Phan is alive and well. In that case, he does not meet alternative criteria in clause 801.221.

25. Mr Ngo does not satisfy clause 801.221 at the time of this decision. The Tribunal will affirm the decision to refuse to grant the visa for that reason.

    OTHER MATTERS

26. The Department’s visa application file contains a certificate said to be issued under section 376 of the Act stating disclosure of information would be contrary to the public interest because it contains information provided confidentially to the Department. The information is an allegation made in 2012 that the relationship between Mr Ngo and Ms Phan is contrived and is in a document handwritten by named person. Nothing in the document indicates the person provided the information in confidence and the Tribunal finds that the certificate is not valid in for that reason.

27. The Department made Mr Ngo aware of the allegation. He denied it and provided documentary evidence of shared living arrangements and statements from other people attesting to their knowledge of the relationship. The Tribunal gave the allegation no weight because it was made many years ago, is not relevant to the relationship at the time of decision and it cannot assess whether the source is honest and/or reliable.

    DECISION

    The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

    Kate Timbs
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

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

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

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

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

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

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

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

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

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

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

    (ii)any joint liabilities; and

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

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

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

    (b)the nature of the household, including:

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

    (ii)the living arrangements of the persons; and

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

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

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

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

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

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

    (i)the duration of the relationship; and

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

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

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

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