NGUYEN (Migration)
[2022] AATA 294
•21 January 2022
NGUYEN (Migration) [2022] AATA 294 (21 January 2022)
DECISION RECORD
DIVISION: Migration & Refugee Division
REVIEW APPLICANT: Ms Suong Thi Ngoc Nguyen
VISA APPLICANTS: Mr Ngan Hoang
Mr Trung Phong Hoang
REPRESENTATIVE: Mr Cuong Vo (MARN: 9250600)
CASE NUMBER: 1825004
DIBP REFERENCE(S): BCC2017/2255638
MEMBER: Mila Foster
DATE: 21 January 2022
PLACE OF DECISION: Sydney
DECISION: The Tribunal affirms the decisions not to grant the
visa applicants Partner (Provisional) (Class UF) visas.
Statement made on 21 January 2022 at 3:28pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – validly married in home country – limited evidence of financial, household and social aspects of relationship and nature of commitment while living in different countries – communication and visits by review applicant – review applicant has not informed adult children of marriage – member of family unit – adult child – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5F(2)(a), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 309.211(2), 309.311
CASE
He v MIBP [2017] FCAFC 206
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 July 2018 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).
The first named visa applicant applied for the visa on 26 June 2017 on the basis that he was the spouse of the review applicant. The second named visa applicant applied for the visa on the basis that he was the first named visa applicant’s son.
At the time the visa application was made, 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. Any members of the family unit who are applicants for the visa need satisfy only the secondary criteria. The primary criteria include cl 309.211. A visa applicant can satisfy that criteria if they are the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen at the time of application: cl. 309.211(2). Clause 309.221 requires such a visa applicant to continue to be the spouse or de facto partner of the Australian citizen or Australian permanent resident or an eligible New Zealand citizen at the time of decision.
The delegate refused to grant the visas on the basis that the first named visa applicant (primary visa applicant) did not satisfy cl 309.211 because he was not in a genuine and continuing relationship with the review applicant and hence was not her spouse.
The review applicant appeared before the Tribunal on 28 October 2021 to give evidence and present arguments. Due to the COVID-19 pandemic, the hearing was conducted by video. The Tribunal also received oral evidence by telephone from the primary visa applicant.
The review applicant was represented in relation to the review by a migration agent. The representative attended the Tribunal hearing. The representative had also represented the visa applicants in relation to their visa application.
For the following reasons, the Tribunal has concluded that decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the primary visa applicant and the review applicant (the parties) are spouses as defined in the Act.
The evidence before the Tribunal consists of the Department of Home Affairs file relating to the visa application, the Department’s movement record relating to the review applicant, documentary and photographic submitted to the Tribunal, and oral evidence the parties gave at the hearing.
The Department file contains notes of an interview conducted with the primary visa applicant on 13 July 2018. At the hearing the Tribunal put to the review applicant that the photographs submitted to the Tribunal prior to the hearing were not annotated to indicate, for example, when and where they taken. The Tribunal also noted the lack of corroborating evidence from friends and family about the parties’ relationship. The review applicant was given additional time after the hearing to provide descriptions of the photographs and submit any further
Case Number 1825004 Page 2 of 9
supporting evidence. She submitted what appeared to be screenshot of texts messages said to be ‘telephone communication between the applicant and the sponsor’.
Background and summary of claims
It is claimed that the primary visa applicant is a 50-year-old national and resident of Vietnam and that the review applicant is a 54-year-old Australian citizen and resident.
According to the visa application, the primary visa applicant and review applicant each have a sister living in Canberra. The sisters know each other and introduced the parties to each other. At interview the primary visa applicant said the parties communicated with each other by telephone for about two or three months before they met in person. The parties claim the review applicant travelled to Vietnam on 19 August 2016 and they met in person on that date. According to the visa application the parties became engaged on 6 September 2016. The review applicant’s movement record indicates she departed Australia on 19 August 2016 and returned on 14 September 2016.
According to the visa application the review applicant returned to Vietnam and the parties married on 21 February 2017. At the interview the primary visa applicant said that the parties had their wedding ceremony on 8 January 2017 (that date being based on the Lunar calendar). At the hearing the review applicant said the parties were married on 4 February 2017. The review applicant’s movement record indicates she departed Australia on 2 February 2017 and returned on 1 March 2017.
The review applicant claims she returned to visit the primary visa applicant three more times - in September 2017, September 2018 and January 2020. Her movement records indicate she was outside Australia from 22 August to 5 September 2017, 9 September to 3 October 2018, and from 1 January to 31 January 2020.
The parties claim they were each married before. They claim their previous marriages ended by divorce and they had children with their previous spouses. The review applicant claims she was married from 1990 until 30 November 2015, and has three daughters aged 31, 29 and 23.1 The primary visa applicant claims he was married from 1993 until 24 August 2016 and has four children - daughters aged 27, 26 and 13, and a son, the second named visa applicant, who is 23-years-old.
According to the visa application the primary visa applicant’s parents are deceased, he has 7 sisters - two of whom are permanent residents of Australia and the others reside in Vietnam. The review applicant claims her father is deceased; her widowed mother, one sister and three brothers are Australian citizens and residents, and another brother resides in Vietnam.
Review applicant’s citizenship
A copy of the biodata page of the review applicant’s Australian passport was submitted in support of the visa application. Her movement record states that she is an Australian national. The Tribunal thus finds that the review applicant is an Australian citizen.
Are the parties in a spouse relationship
‘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
1 The visa application form states the review applicant has two daughters and one son; at the hearing the review applicant and primary visa applicant stated that she had three daughters.
Case Number 1825004 Page 3 of 9
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 r.1.15A(3), which is extracted in the attachment to this 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?
The Tribunal has before it a Vietnamese marriage certificate which states that the parties’ marriage was registered on 21 February 2017 and divorce certificates relating to their previous marriages. On the evidence before it the Tribunal finds that the parties were married to each other in Vietnam under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).
Financial aspects of the relationship
According to the visa application the parties did not have a joint account or joint property because they had not had the opportunity to establish a household together given they lived in different countries. At the hearing the review applicant confirmed that the parties did not have joint ownership of any real estate or major assets, had no joint liabilities and had not pooled their financial resources because they lived in different countries. There is no evidence before the Tribunal that either party owes any legal obligations with respect to the other.
Given the parties live in separate countries, the Tribunal has given no weight to the fact that they do not have joint ownership of assets or joint liabilities, have not pooled their financial resources, do not owe any legal obligations to the other or share day-to-day household expenses.
Nature of the household
The parties do not claim to have joint responsibility of the care and support of any children.
Given the parties live in different countries the Tribunal accepts they have not had the opportunity to establish a household together. However, the primary visa applicant indicated at the interview and the parties stated at the hearing that once they married, they lived together when the review applicant returned to Vietnam. They stated they lived at the primary visa applicant’s home but mostly lived in hotels he paid for. The review applicant said they shared the housework when they lived together.
There is no supporting evidence to corroborate the claim that the parties’ lived together in Vietnam – for example, no supporting statements from family or friends or hotel receipts. The lack of documentary evidence to support the claim was referred to in the delegate’s decision record. The review applicant claims she returned to Vietnam to see the primary visa applicant two times after the visa refusal. This presented her with two opportunities to obtain supporting evidence to show that the parties lived together in Vietnam. The lack of readily available supporting evidence undermines the claim that the parties lived together in Vietnam and raises doubts about the claim.
Case Number 1825004 Page 4 of 9
Social aspects of the relationship
According to the visa application when the review applicant was in Vietnam, the parties went out together, introduced their relationship to relatives and friends, ‘celebrated their wedding party’, were legally married, their marriage was witnessed, and their marriage certificate was issued by the local government. At the interview the primary visa applicant said his sister, the review applicant’s sister from Australia and the review applicant’s brother in Ho Chi Minh city attended the parties’ wedding. At the hearing the review applicant stated that the parties represented themselves as a married couple. She stated that all the primary visa applicant’s siblings and all four of his children knew the parties were married. Further, her mother, sister and all her brothers were aware of her marriage and all of them had met the primary visa applicant in Vietnam. She said her sister, one brother from Australia and her brother in Vietnam attended the wedding. She also stated that friends of hers and the primary review applicant attended the wedding.
Photographs of what appear to be the parties’ engagement and wedding were submitted to the Department and hence corroborate the claim that the parties were married. However, as the photographs were not annotated, they do not indicate to the Tribunal who attended the engagement and wedding. Further, no supporting evidence has been presented from any of the parties’ family members to corroborate the claim that they are aware of the parties’ marriage. Nor is there any evidence before the Tribunal from any of the parties’ friends and acquaintances about their opinion of the parties’ relationship.
Asked at the hearing whether her children knew the parties were married, the review applicant said they were not. Asked why not, the review applicant said she was afraid that they would not be happy. Asked whether she planned to inform her children of her marriage if the primary visa applicant came to Australia, the review applicant said she did. Asked how she thought her children would react upon hearing she had been married for more than five years, the review applicant responded that they would agree because their father had already remarried and they wanted her to be looked after by someone. Asked why in that case she had not already told her children she was married, the review applicant said she was afraid they may get upset and be unhappy. Asked why her children would be upset if they wanted someone to look after her, the review applicant stated that she did not want them to be worried and she thought she should wait until the primary visa applicant arrived. The Tribunal put to the review applicant that the fact she had not informed her children that she was married might raise doubts about the genuineness of her relationship. The review applicant responded that it was totally genuine, she did not want to upset and worry her children before the primary visa applicant’s arrival. The Tribunal does not consider the review applicant’s explanation for not informing her children credible. The Tribunal believes there is an inconsistency between the claim that her children wanted her to be ‘looked after by someone’ and would ‘agree’ to her marriage if told about the marriage once the primary visa applicant arrived in Australia but would not be happy about it if they were informed of the marriage prior to that. In the Tribunal’s view the fact that the review applicant has not informed her three adult children about her five year marriage raises doubts about the genuineness of her relationship with the primary visa applicant.
Given the parties claim that the review applicant has made five trips to Vietnam to meet, marry and visit the primary visa applicant they would have had ample opportunity to undertake social activities together. Asked at the hearing about their joint social activities in Vietnam, the review applicant said they enjoyed going to temple together as they were both Buddhists. Asked if they engaged in any other social activities, the review applicant replied that they did not. Asked about any social activity undertaken with the primary review applicant’s friends and family, the review applicant said the parties visited friends and relatives, had some dinner and that was it. The Tribunal noted that it did not appear that the parties had undertaken very much social activity. Asked why, the review applicant
Case Number 1825004 Page 5 of 9
responded, ‘like what?’. The Tribunal suggested they might have gone to restaurants, festivals, the beach. The review applicant responded they did all of that. Rather than explaining why it seemed the parties’ joint social activities seemed limited the review applicant indicated that they had engaged in activities suggested by the Tribunal. If the parties had gone to restaurants, festivals and the beach then the Tribunal expects its previous questions about the parties’ social activities would have elicited that information.
In addition to the wedding photographs, the Tribunal has before it some photographs of the parties in a few different settings. Some of the photographs were submitted to the Department and were said to be of the parties’ wedding ceremony, the parties at the airport and the parties out together. Additional photos submitted to the Tribunal prior to the hearing were said to be of the review applicant’s trip to Vietnam in September 2018. The photographs were not otherwise annotated to indicate precisely when they were taken, where they were taken or who else (such as family and friends) appear in the photographs. The review applicant was given the opportunity to provide descriptions of the photographs after the hearing and so provide such details but she did not do so. The Tribunal thus gives the photographs little weight as an indicator of the social aspects of the parties’ relationship. Further, the Tribunal notes that there are no photographs of the parties during the review applicant’s trip in 2020.
Overall, the evidence of the social aspects of the parties’ relationship is very limited even though they have ample opportunity to engage in social activity with their family and friends during the review applicant’s five trips to Vietnam. The Tribunal regards it as significant that no evidence from family and friends about their opinion of the parties’ relationship has been presented and that the review applicant has not informed her children of her marriage. The social aspects of the parties’ relationship raises doubts about whether the parties relationship is genuine and continuing.
Nature of persons' commitment to each other
It was stated in the visa application that the parties got along together and had committed to live together for the rest of their lives in Australia as soul mates.
The parties have been married for almost five years and claim to be have been in a relationship for about 5 1/2 years. Those are long periods of time. However, the issue is not the length of time the parties claim to be in a relationship but whether the relationship is a genuine one.
The parties claim to have lived together since marrying whenever the review applicant was in Vietnam. Based on her movement record that would indicate they have lived together for about three months. Given the parties are nationals and residents of two different countries this is not an insignificant period of time. However, as indicated above there is no evidence to corroborate the claim that the parties lived together which raises doubts about whether they lived together and the genuineness of their relationship.
The parties claim that when the review applicant was not in Vietnam they communicated by telephone. The review applicant submitted some of her mobile phone bills to the Tribunal. At the hearing she said the primary visa applicant called her on the mobile phone to which the bills related. The phone bills do not however show the phone number from which calls were made to or from the review applicant’s mobile. Hence the Tribunal has given the phone bills no weight.
After the hearing the review applicant submitted what was said to be evidence of communication between the parties. The evidence consists of what appears to be screenshots of some mobile phone text messages and calls made between 2016 and 2021.
Case Number 1825004 Page 6 of 9
The Tribunal has given this evidence little weight. It is not apparent from the screenshots that the messages were sent by or calls made by the parties. The messages are in Vietnamese although a few have handwritten English translations. The Tribunal’s correspondence and practice directions states that evidence submitted to the Tribunal which is not in English should be accompanied by accredited English translations. Even so the unaccredited translations do not indicate the communication is between the parties. The Tribunal has thus given this evidence little weight.
At the hearing the review applicant said she married the primary visa applicant because she loved him and he loved her. Asked what emotional support she had drawn from the primary visa applicant, she said none because she did not need any, she did not have any troubles. Questioned further, the review applicant insisted that she had not needed and hence not drawn on any emotional support from the primary visa applicant in the preceding five years. Noting she claimed to have been afraid to tell her children she had married the primary visa applicant and asked whether she had turned to him for emotional support in relation to that, the review applicant replied that she had not. Asked what she drew from the marriage, the review applicant said she hoped to gain a partner, to share their lives, to look after each other emotionally, to physically support each other, and to have help to look after her mother. Asked how she expected the primary visa applicant to support her, the review applicant referred to ups and downs in life, being happy and unhappy, healthy and unhealthy. The primary review applicant stated at the hearing that he wanted to marry the review applicant because they shared the same understanding, thought the same, were compatible in conversation, were emotionally connected and had empathy for each other. Asked what they talked about he said they enjoyed talking about business, personal life and private matters, he said he knew her situation in Australia and she knew about his situation; they went sightseeing and shared trips and were connected emotionally.
The parties both stated at the hearing that if the primary visa applicant was granted the visa their future plans were for him to study English and gain employment and to save to buy a property.
The Tribunal has had regard to the claims the parties made about what they draw from each other and their marriage, their plans and expectations for the future of their relationship but given this less weight in light of other aspects of their relationship and the limited supporting evidence.
Any other circumstances of the relationship
There are no other circumstances of the relationship.
Conclusion – s 5F(2)There is a lack of credible supporting evidence to corroborate the parties’ claims about their relationship which raises doubts about the genuineness of their relationship. There is not corroborative evidence such as hotel receipts that the parties lived together in Vietnam. There is very limited supporting evidence in form of a few unannotated photographs that the parties engaged in social activity together in Vietnam. There is no evidence such as written statements from family or friends about their opinions of the parties’ relationship.
Corroborative evidence is not a requirement. However, it would have been readily available to the parties given their claimed circumstances. Further, the lack of supporting evidence was brought to the attention of the review applicant in the delegate’s decision record2 and at the hearing. And the parties were represented by a migration agent in connection with the
2 A copy of which she submitted to the Tribunal.
Case Number 1825004 Page 7 of 9
visa application and the review whom they could have consulted about what supporting evidence to provide. Additionally, for reasons given above the Tribunal has given little weight to the supporting documentary evidence presented.
Having regard to all the evidence and the above consideration of the aspects of the parties’ relationship, the Tribunal is not satisfied that the parties were in a genuine and continuing relationship at the time of application and time of decision. The Tribunal thus finds that the requirements of s 5F(2) were not met at the time of application and time of decision. Hence, the Tribunal finds that the primary visa applicant was not the spouse of the review applicant at those points in time.
Conclusion – visa criteria
As the primary visa applicant was not the spouse of the review applicant at the time of application, he does not satisfy cl 309.211(2). The primary visa applicant has not sought to satisfy the alternative requirements of cl 309.211(3). The Tribunal therefore finds that the primary visa applicant does not meet cl 309.211. As the primary visa applicant does not meet cl 309.211 and is not the spouse of the review applicant at the time of decision, he does not satisfy the requirements of cl 309.221.
As the second named visa applicant applied for the visa on the basis that he was a member of the family unit of the primary visa applicant and the primary visa applicant does not meet cl 309.211, the Tribunal finds that the second named visa applicant does not meet the requirements of cl 309.311.
For the reasons above, the visa applicants do not satisfy the criteria for the grant of the visa. DECISION
The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.
Mila Foster
Member
Case Number 1825004 Page 8 of 9
ATTACHMENT - Extract from Migration Regulations 1994
1.15A Spouse
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.
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).
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.
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).
Case Number 1825004 Page 9 of 9
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
-
Natural Justice
0