Nguyen (Migration)

[2022] AATA 854

Nguyen (Migration) [2022] AATA 854 (14 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Thi Thanh Thuy Nguyen

REPRESENTATIVE:  Mr Jack Ta (MARN: 0212473)

CASE NUMBER:  1816515

HOME AFFAIRS REFERENCE(S):          BCC2017/302613

MEMBER:Kira Raif

DATE:14 April 2022

PLACE OF DECISION:  Sydney

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

Statement made on 14 April 2022 at 11:47am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – genuine relationship – consent to decision without hearing with no explanation for non-attendance provided – valid marriage and extensive documentary evidence alone not sufficient to establish genuine relationship – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211(2)(a), 820.221

CASE
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 Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Vietnam, born in November 1975. She applied for the visa on 23 January 2017 on the basis of her relationship with the sponsor. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.211 because the delegate was not satisfied the applicant was the spouse of the sponsor. The applicant seeks review of the delegate’s decision.

3. On 8 April 2022 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to her application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 11 May 2022. On 12 April 2022 the applicant advised the Tribunal that she did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

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

   Relevant law

5. At the time the application was made, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

6. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.

7. ‘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 parties’ household and their commitment to each other as set out in reg 1.15A(3). Each of the specific matters contained in reg 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. The applicant provided with her application a copy of the marriage certificate confirming they registered marriage in Sydney on 11 December 2016. There is nothing to suggest the marriage is not valid. The Tribunal is satisfied 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?

9. When making the application, the applicant provided very limited evidence of her relationship with the sponsor and the delegate was not satisfied the relationship was a genuine one. The applicant provided a multitude of additional documents to the Tribunal and the Tribunal acknowledges the breadth of that evidence. However, the Tribunal is not satisfied of the existence of a genuine spousal relationship on the written evidence alone, no matter how extensive or perfect in appearance. In the Tribunal’s view, documentary evidence in itself is not sufficient to establish the existence of a genuine spousal relationship. This is because it is possible to obtain such evidence when there is no genuine spousal relationship between parties. For example, when joint names appear on receipts, those who issue the receipts do not check whether the funds are contributed by both parties. When correspondence is sent to the same address, those who send the correspondence do not check if a person in fact lives at that address and, more importantly, what is the relationship of all those who live at the premises. When there are photograph taken of the couple and with others, these may represent awareness of the relationship and joint social activities but may also indicate the applicant’s desire to obtain evidence in support of her visa application. The same can be said about financial records such as information about partners on taxation and superannuation records, etc. For example, the applicant provided to the Tribunal her 2017 tax return showing no taxable income but which refers to the sponsor as her spouse. There is no obvious reason why the applicant would need to file a tax return when she had no taxable income and it would seem that this document was obtained for the purpose of the visa application. In the Tribunal’s view, documentary evidence such as what was provided by the applicant is meaningful in conjunction with evidence that can be tested and verified but in this case, the presented evidence is largely untestable and unverifiable and, on its own, does not satisfy the Tribunal that a genuine spousal relationship exists.

10. The Tribunal informed the applicant that it was unable to make a favourable decision on the material before it and inviting her to attend the hearing. The applicant was put on notice that despite the presented evidence, the Tribunal considered that her oral evidence was required. The applicant declined the Tribunal’s invitation. While she refers to the sponsor’s hearing loss as a reason for not attending the hearing, she does not explain her own unwillingness to attend the Tribunal hearing and present evidence and arguments.

11. On the evidence before it, and noting the wealth of the presented documentary evidence but also the Tribunal’s concerns about its inability to test the documentary evidence, the Tribunal is not satisfied a genuine spousal relationship exists between the applicant and the sponsor. The Tribunal is not satisfied the applicant and the sponsor have joint ownership of assets or joint liabilities, that they pool their resources or have legal obligations towards each other. As noted above, the nomination of one another as beneficiaries may be indicative of joint ownership or shared liabilities but may also be indicative of a willingness to make such records for the purpose of the visa application and without questioning the applicant about these matters, the Tribunal does not place weight on the documentary evidence. The Tribunal is not satisfied they share daily household expenses (while acknowledging that there appears to be a joint bank account.)

12. The Tribunal is not satisfied the applicant and the sponsor share the housework, nor that  they have joint responsibilities for the care and support of the children. Whether or no they live in the same household, the Tribunal is not satisfied that they have established a joint household that is consistent with the existence of a spousal relationship.

13. There are statements from third parties and multiple photographs that have been presented to the delegate and the Tribunal. The fact that the Tribunal was unable to hold a hearing means that the Tribunal was unable to question the parties about the social recognition of the relationship or their interactions with others. Again, the Tribunal is unable to determine, without any testing of the evidence, whether the evidence of the social recognition of the relationship genuinely reflects such recognition or whether it was prepared for the purpose of the application. As such, the Tribunal is not satisfied the applicant and sponsor plan and undertake joint social activities. The Tribunal acknowledges the statements from third parties indicating that  they represent themselves to others as being in a genuine relationship.

14. The claimed relationship has been in existence for a period exceeding five years. If there was a genuine relationship between the applicant and sponsor in that period, that would have been a significant period of time but for the reasons stated above, the Tribunal is not satisfied that such a relationship existed. The Tribunal is not satisfied on the evidence before it that the applicant and sponsor draw companionship and emotional support from each other, nor that  they view the relationship as a long term one.

15. The Tribunal has considered all the aspects of the relationship and all the documentary evidence. for the reasons set out above, the Tribunal does not consider the presented evidence to be adequate to enable it to make a positive decision that the applicant is the spouse of the sponsor. The Tribunal is not satisfied that the requirements of s 5F(2) are met at the time the visa application was made and the time of this decision. Therefore the applicant does not meet cl 820.211(2)(a) and cl 820.221.

16. The applicant has not provided any evidence to suggest she meets any of the alternative criteria for visa grant, such as death of the sponsor, family violence or responsibilities in relation to a child. The Tribunal is not satisfied these alternative criteria are met.

    Conclusion

17. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

18. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Kira Raif
    Senior Member