Nguyen (Migration) - [2021] AATA 5493

Nguyen (Migration) [2021] AATA 5493 (21 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Thi Hoai Thu Nguyen
CASE NUMBER:  1835052
HOME AFFAIRS REFERENCE(S):          BCC2017/4613787
MEMBER:P. Maishman
DATE:21 September 2021
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 21 September 2021 at 1:01pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – relationship ceased – family violence exception – existence of genuine spousal relationship before the claimed family violence – false or misleading information – credibility concerns – financial aspects – nature of the household – social aspects – nature of the commitment – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), rr 1.15A, 2.03A; Schedule 2, cls 820.211, 820.221, 820.226; Schedule 4, PIC 4020
CASES
El Jejieh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1103
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 Home Affairs on 27 November 2018 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 5 December 2017 on the basis of her relationship with her sponsor, Kim Lee Ung. At that time, 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 (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.
Relevantly to this matter the primary criteria include cl 820.211 and cl 820.221 which require at the time of application and decision, the applicant is the spouse or de facto partner of the sponsor, unless the relationship has ceased and certain circumstances exist. These include that the applicant, or a member of the family unit, has suffered family violence committed by the sponsor: cl.820.221(3)(b)(i). The applicant claims her relationship with the sponsor ceased and she suffered family violence.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(a) because the delegate was not satisfied the applicant was the spouse or de facto partner of her sponsor at the time of application.
The applicant appeared before the Tribunal on 27 January 2021 and 27 July 2021 to give evidence and present arguments. The Tribunal also heard from Ms Thi Cuc Truong, the owner of premises at Jessel Court on 27 July 2021.
The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal had before it a copy of the Department’s file containing the visa application, sponsorship form and documents the Department received. The applicant claims to have first met the sponsor in November 2013 and to have married on 28 November 2014. The applicant and the sponsor declared their residential address to be Jessel Court, Westminster and provided documents including a residential tenancy agreement, individual Department of Transport invoices issued on 28 November 2017, and a payslip issued 23 November 2017 showing the Jessel Court address.
The applicant gave the Tribunal a copy of the delegate’s decision record with her application for review. The applicant applied for the Partner visa on 5 December 2017. The Department wrote to the applicant on 25 September 2018 inviting her to submit additional evidence of her and her sponsors relationship. The delegate determined it was not satisfied the evidence and information provided was sufficient to demonstrate the applicant was the spouse or de facto partner of the sponsor, as defined.
The Tribunal wrote to the applicant on 14 May 2019 and invited her to provide evidence about her relationship to support her application. On 11 June 2019 the Tribunal received copies of transaction statements for the applicant and sponsors joint Westpac account *7314 period from 1 December 2016 to 31 January 2019 and a submission the applicant was now to be considered under the family violence provisions. The applicant submitted because of her circumstances they were unable to obtain any further supporting information about the applicant and sponsors relationship.
The Tribunal received a report dated 2 August 2020 attached to a Form 1410 statutory declaration from Linda Kenmar, social worker, on 10 November 2020. On 20 January 2021 the Tribunal received the representatives submissions, a statutory declaration from the applicant signed 20 January 2021 claiming she left the house she shared with the sponsor in December 2018 and alleging she had suffered family violence; a statutory declaration with attached report dated 27 August 2019 from Sandra Nguyen, registered clinical psychologist; and a letter from Dr Niamh Meade dated 22 August 2019.
The Tribunal notes that there are conflicting Federal Court authorities as to whether the family violence exception to the continuing relationship requirement is available in circumstances where the decision maker is not satisfied of the existence of the relationship before the claimed family violence.
The Tribunal notes there are a number of authorities to the effect that a decision maker may consider whether there ever was a genuine relationship and if not, then it is not necessary to consider whether relevant family violence has occurred[1]. However, the most recent Federal Court judgment on this issue, El Jejieh v MICMSMA, which did not cite the previous authorities, interpreted the family violence exception of the offshore Subclass 100 Partner visa (at cl 100.221(4)) as containing no requirement that the relationship referred to at that clause be a genuine spouse or de facto relationship. Judge Wagner found that cl 100.221(4) requires the applicant to establish that he or she entered Australia as the holder of a Subclass 309 visa and continues to hold that visa, not that there was a relationship, and that if the applicant held and continues to hold a Subclass 309 visa, then the Tribunal is required to consider whether the applicant has suffered relevant family violence.
[1] See MIAC v Zouk [2007] FCAFC 47 at [15]-[17], Manpreet Kaur v MIBP [2014] at [44], Hanna v MIBP [2016] FCA 282 at [23] and Liu v MHA [2019] FCA 1925 at [21]-[22].
It is a precondition to the consideration of the family violence exception in cl 820.221(3)(b)(i), that the applicant would have continued to be the spouse or de facto relationship with the sponsoring partner except that the relationship has ceased. A determination that the applicant was the spouse of the sponsor is required before it can be determined whether the relationship has ceased, and then whether the family violence exception is met.
The Tribunal distinguishes the family violence exception in cl 820.221(3)(b)(i) (such as the current case) from that of cl 100.221(4) as there has been no determination that the applicant was the genuine spouse of sponsor taking into account the matters in r.1.15A(3).
Evidence at hearing - 27 January 2021
The applicant gave oral evidence to the Tribunal. The applicant said she had no further documentary evidence of her relationship because she did not keep any documents when she left her husband in December 2018. The utilities were in her father-in-law’s name only because he received a concession on the bills and would not do so if they were not in his name. A friend had kept photos of her wedding on her Facebook account but she had not downloaded those photos.
The applicant told the Tribunal she and her sponsor did not move into the property at Jessel Court. The Tribunal was concerned the applicant’s evidence was inconsistent with the information provided in her visa application in which she declared her residential address as Jessel Court. The applicant gave the Tribunal a joint tenancy agreement and correspondence from the Department of Transport issued on 28 November 2017 to her and her sponsor at that address to support her application. Further the applicant later made a statutory declaration dated 4 May 2018 in which she described she and her sponsor ‘moved in’ to Jessel Court on 28 November 2017.
The Tribunal advised the applicant the criteria for the grant of the visa included cl 820.226 which required her to meet Public Interest Criteria 4020. The applicant denied the information claiming to have moved to Jessel Crt was given in order to create a misleading impression about her and her husband’s accommodation arrangements. The Tribunal invited the applicant to make written submissions about the potentially false or misleading information that was before the Tribunal.
The Tribunal received written submissions on 10 February 2021 submitting the information provided by the applicant and sponsor was an innocent mistake and its provision did not have an element of fraud or deception. The applicant provided a further statutory declaration; a statutory declaration from Thi Cuc Truong, the landlord of Jessel Court; and emails between the applicant and real estate agent to support her assertion the information provided was an innocent mistake.
Evidence at hearing - 27 July 2021
The Tribunal held a second hearing to address concerns it had with the applicant’s evidence and the statutory declaration of Thi Cuc Truong dated 8 February 2021.
The applicant had not disclosed knowledge of the existence of the sponsor’s father, Robinson Truong, prior to her evidence at the hearing on 27 January 2021. She did not disclose him as an immediate family member of the sponsor on her visa application form. In her statutory declaration dated 4 May 2018 she referred to Robinson Truong as ‘another occupant’ of the house she claims to have shared with the sponsor.
The applicant told the Tribunal she knew Robinson Truong was her sponsors blood father when she met the sponsor. She did not declare Robinson Truong’s relationship in her visa application because he said he would get a penalty from the government. She understood Robinson Truong was not declared as her sponsors father on his birth certificate because he would have had to pay Centrelink following his separation from the sponsor’s mother.
The Tribunal had regard to an earlier decision (1619706) of the Tribunal (differently constituted) dated 15 November 2017. The applicant appeared before that Tribunal on 16 October 2017 to give evidence in respect of her request for review of the refusal of her earlier application for a partner visa. The Tribunal adopted the procedure in s 359AA of the Act. The earlier Tribunal’s reasons disclose the applicant gave evidence no family from either side attended her wedding. The Tribunal told the applicant it considered this information to be adverse and relevant to the current review because it contradicts her oral evidence from 27 January 2021 that her father-in-law attended her wedding. The Tribunal explained it may find she provided information that is false or misleading if it relies on that information, without her comment or response. The Tribunal outlined the requirement to meet the provisions of cl 820.226 and public interest criteria 4020. The Tribunal told the applicant the finding there was false or misleading information before the decision-maker would be the reason to affirm the decision under review. At the applicant’s request, the Tribunal allowed 14 days to respond to that information. The Tribunal received a statutory declaration dated 16 August 2021 from the applicant.
The claimed landlord of Jessel Court, Thi Cuc Truong, attended the Tribunal in person to give evidence on the applicant’s behalf. Ms Truong told the Tribunal her instructions to her then agent, Mr Hieu Nguyen, was that Jessel Court could not be tenanted while it underwent renovations. She agreed with a request from Mr Hieu Nguyen for the applicant to use the address without allowing her to move in. Ms Truong said she knew the applicant received correspondence from the License and Motor Department and Immigration Department at Jessel Court because the eventual tenant told her agent of the mail and did not know where to forward it. Ms Truong denied the Tribunal’s suggestion that it appeared more likely she would not know the specific detail of the mail going to Jessel Court and her declaration was made based on what she was told, rather than what she knew. Ms Truong said after being approached by the applicant in February 2021 she prepared a handwritten statement which her daughter transcribed into the statutory declaration she signed on 8 February 2021. Ms Truong denies she wrote anything about the License and Motor Department and Immigration Department in her handwritten version and said her daughter might have included it.
The Tribunal does not consider Ms Truong to be a reliable witness and attributes her evidence no weight. Ms Truong said she did not mention the License and Motor Department or Immigration Department when she wrote her statement in Vietnamese. Her explanation that her daughter transcribed her handwritten Vietnamese statement into her statutory declaration referring to the License and Motor Department or Immigration Department does not explain how or why she or her daughter would know from whom correspondence was being received by the applicant. The Tribunal also finds Ms Truong’s explanation she knew the applicant was receiving correspondence to Jessel Court because her agent told her the new tenants did not know where to forward the correspondence to be implausible. Ms Truong had difficulty recalling the name of her agent or the company for which he worked during November 2017 to January 2018 and the Tribunal does not accept she would recall with such clarity the details of mail in the applicant’s name she had not seen.
Applicant’s credibility
The Tribunal finds the applicant is not a witness of credit. The applicant has demonstrated that she is prepared to give false, incorrect and/or misleading information about her circumstances notwithstanding taking an oath to tell the truth or signing a declaration that the information she has given is correct. Consequently the Tribunal treats the applicant’s evidence with caution.
The applicant declared her husband confided everything about his biological father Robinson Truong when they first met. She told her husband not putting Robinson Truong’s name on his birth certificate for the purposes of getting support from the government was not a good thing to do. The applicant details a difficult relationship with her domineering father-in-law and eventually with her violent husband, the sponsor. The sponsor insisted he could not do anything about his father’s behaviour.
The applicant knew the correct familial relationship of her sponsor and Robinson Truong and did not disclose that relationship on her visa application form despite acknowledging the declarations including that giving false or misleading information was a serious offence; and the application contained only correct information. The applicant continued not to be truthful, under oath, when she gave evidence to the earlier Tribunal on 16 October 2017 no family members from either her or her sponsors side attended her wedding, when she knew Robinson Truong attended her wedding and that he was her sponsors father. The applicant’s statutory declaration on 4 May 2018 continues to obfuscate the sponsor’s relationship to Robinson Truong describing him as their housemate.
The Tribunal does not accept the applicant’s loyalty to, or claimed fear of, her husband negates the obligation not to provide false or misleading information in response to questions material to the grant of a visa.
Further, the Tribunal does not accept the applicant’s explanation she recorded Jessel Court as her residential address in the honest belief she would occupy the address in the future.
The applicant presented the Department a lease agreement signed by the applicant, the sponsor and the property manager for Jessel Court for six months from 28 November 2017. To support her claimed occupation of Jessel Court she provided correspondence in her and her sponsors name issued by the Department of Transport on 28 November 2017 and a payslip issued 23 November 2017 showing the Jessel Court address.
The Tribunal acknowledges the chain of emails purported to be between the applicant and the property manager at L. J. Hooker between the dates of 6 December 2017 and 7 January 2018. L J Hooker sent the applicant a form to apply to rent the Jessel Court premises on 6 December 2017; the agency acknowledged receipt of that application until 20 December 2017. The L J Hooker property manager wrote to the applicant on 20 December 2017 to query why mail addressed to her had been received at Jessel Court and requested the applicant not use the address until the lease is signed. The L J Hooker Property Manager sought the applicant to provide a phone number for a reference (Emma) and on 7 January 2018 the applicant told the L J Hooker property manager her husband no longer wanted to take the lease.
The Tribunal does not accept the applicant’s representative’s submission on 10 February 2021 the applicant had a genuine interest and intention to rent Jessel Court. The applicant makes no comment or indication in her emails to the L J Hooker property manager that she had already entered into a lease agreement a week earlier on 28 November 2017 with Hieu Nguyen. Despite expressing an interest to rent the Jessel Court premises on 6 December 2017, L J Hooker did not acknowledge the application until two weeks later on 20 December 2017. The applicant did not then respond to the property managers 21 December 2017 enquiry for “Emma’s” phone number until withdrawing her application on 7 January 2018.
The Tribunal does not accept the applicant’s representative’s submission the reference to having ‘moved in’ was misinterpreted from the applicant’s and sponsors original statements and should have said “I intended on moving to a new premise at 98 Jessel Court”. There is no indication on the applicant’s or sponsors statutory declaration the document has been transcribed from another document by any third party. There is no indication on the statutory declarations that either the applicant or sponsor were unable to read the documents themselves, and so had those statements read to them before they declared them to be true in every particular.
The applicant was not residing at Jessel Court when she declared that address on her visa application on 5 December 2017. She reiterated she had ‘moved in’ to Jessel Court in her statutory declaration on 4 May 2018. The applicant delayed properly applying to lease Jessel Court after her first enquiry with L J Hooker on 6 December 2017 until 20 December 2017 and further delayed actively pursuing the premises by not providing “Emma’s” phone number.
The applicant denied the Tribunal suggestion she used a vacant property at Jessel Court with a fake lease, to which correspondence could be sent, to convey something other than her true circumstances for the purposes of her visa application.
Issue
The President’s Direction - Conducting Migration and Refugee Reviews indicates the Tribunal should restrict its review to the matters decided by the delegate. The Tribunal has decided it restrain its review the matter decided by the delegate. The Tribunal remains concerned about the integrity of the information before the Minister but has not made a determination about whether the applicant meets the requirements of cl 820.226.

The issue for the Tribunal to determine is whether, at the time of application, the applicant was the spouse or de facto partner, as defined, of the sponsor. If so, the issue for the Tribunal to determine will be whether, at the time of decision, the applicant’s relationship with the sponsor has ceased and the applicant has suffered family violence.
Whether the parties are in a spouse or de facto relationship
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 Kim Lee Ung who is an Australian citizen.
‘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), which is extracted in the attachment to this decision. 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?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Department’s file contains a marriage certificate from the Registrar of Births, Deaths and Marriages, Perth. The document certifies the applicant and sponsor married in November 2014. There is nothing before the Tribunal that suggests the marriage is not valid. 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).
Are the other requirements for a spouse relationship met?
The Tribunal considered the evidence relating to the reg 1.15A(3) matters at the time of application.
The Tribunal has had regard to the evidence of the financial aspects of the relationship including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.
The Tribunal considered the documentary evidence on the Department’s and Tribunal’s files. The applicant was recorded as 100% beneficiary of the Sponsors Kinetic superannuation fund as evidenced by an online services printout dated 8 August 2016. The applicant and sponsor were covered by a joint health insurance membership with BUPA from 5 December 2017. A rental security bond of $1000, in the applicant and sponsor’s names, was lodged for their 12 month joint tenancy from 21 January 2018 at Rendell Way Koondoola as evidenced by a copy of the lease and the security bond receipt.
The Tribunal received copies of her and the sponsors joint Westpac account transaction summary from 1 December 2016 to 31 January 2019. The account received a number of deposits for ‘pay for work’ from Duc Vinh Nguyen in February and March 2017. The applicant received regular weekly payments from her employment at Bluebells from 15 March 2017. The sponsor’s wages from Oski were directed to the account from 1 June 2017. The transaction summary suggests the account was used regularly to pay for utilities, rent, and goods at various chemists, supermarkets, and gym payments.
The Tribunal had regard to the applicant’s representative’s written submissions dated 20 January 2020. The applicant says she and the sponsor did not operate a joint account until she became aware that it was a requirement to demonstrate the pooling of financial resources. The sponsor was afraid the applicant would steal his money so for a period had his wages paid directly to his personal account. The applicant and sponsor operated their own separate bank accounts towards the end of 2017 because the sponsor was withdrawing too much money to satisfy his drug addiction. The Tribunal attributes neutral weight to the information submitted about the financial aspects of the relationship. The joint account was operated for the purposes of the visa application and not as a genuine way of pooling their financial resources. The sponsor operated his own separate account after withdrawing too much money to satisfy his alleged drug addiction.
The applicant told the Tribunal she and the sponsor acquired no jointly owned assets or joint liabilities. Her husband had a motor vehicle and she purchased a car for about $1500 using a few hundred dollars given to her by her husband. The joint account was used for the payment of rent, food and groceries, the purchase of a fridge, utility bills and dining out. The sponsor used money from the joint account to pay for his drugs. The applicant ceased putting her salary into that account in mid-2017 when loan companies started direct debiting repayments for loans taken by the sponsor. She closed the account before her relationship with the sponsor ceased.
The applicant and sponsors joint bank account was opened in December 2016. The transaction summary offers some indication the applicant and sponsor pooled their resources when both their wages deposited to that account from around July 2017 to pay regular living costs such as rent, bills and groceries. The transaction summary indicates sporadic debits by transfer or cash closely approximating the applicant’s wages deposited which supports the applicants claim to have stopped her pay going to the joint account from July 2017. For example on 19 July 2017 the applicant’s employer deposited $713 and on 20 July 2017 was a transfer of $770 to separate Westpac account; on 26 July 2017 $690 was deposited and on 27 July 2017 $450 was transferred to another account; on 9 August 2017, $733 was deposited and on 10 August 2017 $700 was transferred to a separate Westpac account.
The Tribunal has considered the financial aspects of the applicant and sponsors relationship. The applicant and sponsor claim to have been married since November 2014. Aside from the applicant and sponsor’s joint account being opened from December 2016 and the sponsors superannuation printout from August 2016 there is little evidence of the parties financial intermingling before January 2018. The Tribunal acknowledges the applicant’s claim she stopped putting her money into the joint account in mid-2017 because the sponsors lenders were taking debt repayments from that account. There is however a lack of evidence of any genuine financial relationship between the applicant and sponsor.
The applicant does not claim to have accrued joint ownership of any assets or joint liabilities. The Tribunal acknowledges the lease agreement and bond payment creates a legal obligation for them both to meet the terms of the lease, that is to pay the rent, on the property they rented from 21 January 2018. The applicant and sponsor directed their wages to their joint account to prove they pooled their financial resources for a short time to pay some regular household expenses. The salary deposits that occurred are frequently accompanied by transfers to other accounts or cash withdrawals. The use of the joint account was only to meet what the applicant thought were the Department’s requirements, and not demonstrative of genuine pooling of resources.
The financial aspects of the applicant and sponsor’s relationship overall are not demonstrative of a couple in a genuine spouse relationship at the time of the visa application.
The Tribunal considered the nature of the applicant and sponsors household including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.
The applicant’s written submission is that the applicant’s father had all the utility bills in his name to obtain concessions. The applicant grew her own vegetables to cook for only herself. The sponsor was not aware of her gardening that she grows vegetables to eat.
The applicant does not claim to have joint responsibility with the sponsor for the care and support of children. From the time of the applicant’s marriage to the sponsor until 21 January 2018 they shared accommodation together with the sponsor’s father and his wife. The applicant told the Tribunal she normally did the cooking and cleaning. The applicant grew vegetables for her own use only, and the sponsor was not aware of her gardening or that she grows her own vegetables to eat. The sponsor works hard, was always hungry and would normally just eat.
The nature of the applicant and sponsors household is neutral in the assessment of whether they are in a genuine spouse relationship at the time of application. The parties do not have children they jointly support, they shared the common areas and the garden with the applicant’s father and his wife, and the sponsor did not share the housework because he worked hard.
The Tribunal considered the social aspects of the applicant and sponsors relationship, including whether they represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of their relationship; and the basis on which the applicant and sponsor planned and undertook joint social activities.
The applicant submitted on 20 January 2021 the sponsor did not like his photo being taken. Her family could not attend the wedding because they could not afford it. The sponsors sisters were both working on the Friday they got married and could not get leave.
A number of photographs are contained on the Department’s file showing the applicant and sponsor together, and with friends. The applicant provided photographs from her the Facebook account of her friend, Walang Sangit, on 20 January 2021 that included photos of the applicant and sponsors wedding and the applicant and sponsor together at social events.
The applicant told the Tribunal she and the sponsor hung out with her father-in-law’s friends. Her husband’s friends used drugs and she did not like the environment. The applicant said socially they would go to dinner, attend a party on the farm at which she worked, or go to the beach.
The applicant declared her claimed relationship to the Australian Tax Office on her 2017 income tax return. The applicant and sponsor declared each other as partners on their 2018 income tax returns.
The Tribunal suggested the applicant and sponsor’s wedding appeared rushed, having occurred with very few family or friends in attendance. In her written submission on 20 January 2021 the applicant says she and the sponsor did not have a lot of money for a big celebration and her parent’s health problems prevented their attendance. The applicant told the Tribunal her husband arrived in Western Australia from Sydney shortly before their wedding. He had few friends in Western Australia and his friends from Sydney did not come to their wedding. The applicant said her family could not come from Vietnam because her father had a stroke and her mother got seasick (motion sickness). The sponsors family were invited but his mother did not attend because the sponsor’s father was attending and she did not want to be around him. Everybody knew they loved each other. The applicant said she planned to travel to Vietnam with the sponsor to celebrate their union, but had not done so.
Statutory declarations from friends Kon Chau, Thi Tu Lan Nguyen, Thi Thuy Linh Nguyen and Than Thao Nguyen were received by the Department.
Mr Kon Chau claims to have known the applicant and sponsor for three years through work and community function. He declares the sponsor’s life changed when he met the applicant and the sponsor is much happier than ever. The Tribunal attributes little weight to Mr Chau’s declaration. The Tribunal cannot reconcile how Mr Chau could form the opinion the sponsor’s life changed and that he was much happier given does not appear to have known the sponsor prior to sponsor meeting the applicant.
Thi Tu Lan Nguyen, Thi Thuy Linh Nguyen and Than Thao Nguyen each declare they consider the applicant and sponsor to be a genuine, compatible couple.
Thi Minh Hong Doan, a friend of the applicant, provided a statutory declaration signed 20 January 2021. Ms Doan declares she has known the applicant and her husband since 2016, visited the house they shared with the sponsors father, and had dinner and stayed overnight with them. She acknowledges the applicant told her of concerns about the sponsor. They were mostly a happy couple until the applicant phoned her in January 2019 to tell her she had left the sponsor.
The wedding photos of the applicant and sponsor received by the Tribunal on 14 July 2021 from the Facebook account of Walang Sangit include a list of people who ‘liked’ the photos. The list is annotated with the applicant’s claim each of those people are her relatives.
The sponsor did not declare the applicant as his spouse on his 2015 income tax return. The applicant says this is because he is forgetful and his accountant did not ask him. The Tribunal does not accept the explanation her sponsor was forgetful – he was recently married, a change of circumstance that is significant in a persons life. An income tax return is a response to questions with a declaration the responses are true and correct. The applicant and sponsor represented themselves as a married couple to the Australian Taxation Office (ATO) when completing their 2018 income tax returns. The Tribunal attributes little weight to these declarations as they were made in response to the refusal of the applicant’s first visa application.
Their friends attest they consider the applicant and sponsor were a couple at the time of application and there are a number of photographs of the applicant and sponsor supporting they participated in social events like travel and meals together and with friends around the time of the visa application.
The Tribunal attributes significant weight however to the lack of family recognition of the applicant and sponsor’s relationship. The Tribunal notes the cultural significance in the Vietnamese community of a marriage, particularly of a young couple. Aside from the sponsor’s father, no family from either the applicant or sponsor’s family were in attendance at their wedding. The Tribunal acknowledges the applicant’s claim her mother-in-law and father-in-law have an acrimonious relationship as the reason the sponsor’s mother would not attend. The applicant has however provided no evidence to support her claims her mother and father could not come from Vietnam for financial or health reasons. Further, she has provided no evidence from her parents or family indicating they are aware she was married to, or in a partner relationship with, the sponsor at the time of this visa application. Notwithstanding the statutory declarations from the applicant and sponsors friends expressing their opinion the applicant and sponsor are a couple, the only evidence of any family recognition of the applicant and sponsors relationship are a Facebook ‘like’ list of names the applicant claims to be mostly her relatives. The Tribunal attributes little weight to the Facebook “likes” as genuine recognition of the parties’ relationship by friends, family or acquaintances. The recognition on Facebook is superficial and offers no insight to the nature of the applicant and sponsor’s relationship at the time of application.
The Tribunal finds the social aspects of the applicant and sponsors relationship are not demonstrative of a couple in a genuine spouse relationship at the time of application. There is some evidence the parties represented themselves to a few people as married and those people were prepared to complete statutory declarations expressing their opinion the applicant and sponsor are a married couple. The Tribunal attributes more weight however to the lack of recognition of the applicant and sponsor’s relationship by either side of their families. The applicant’s description of the social activities shared with the sponsor are non-specific and generic and the Tribunal attributes little weight to the evidence the applicant and sponsor planned and undertook social activities together.
The Tribunal considered the nature of the applicant and sponsors commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.
The Tribunal acknowledges the applicant’s claim to have been in a married relationship with the sponsor from November 2014 until they separated in December 2018. The applicant claimed she terminated a pregnancy in 2015 because her husband said they were too young to have a baby. The applicant said she liked babies, but her husband did not care either way. When the sponsors drug use got bad she asked her doctor if having a baby would help him; the doctor suggested falling pregnant was not a good idea.
The applicant’s statutory declaration dated 19 January 2021 outlines the sponsor became different at the beginning of 2016. He became quiet, did not talk to her and got irritated and ignored her when she asked about. The applicant describes her husband deceiving her, abusing her and threatening to kill her if she did not give him money. In September 2017 the applicant was told by the sponsor’s sister about the sponsors drug addiction and problem with drugs since he was 13 years old.
The applicant co-resided with the sponsor for four years from their marriage until they separated in December 2018. The sponsors withdrawn and abusive behaviour from early 2016 suggests the applicant could not draw companionship or emotional support from him from well before the visa application was made in December 2017. The sponsor’s suggestion the applicant terminate her pregnancy in 2015 because of they were too young; and the applicant seeking advice about getting pregnant when her relationship was failing do not indicate they shared goals that would indicate they saw their relationship as long term.
The Tribunal finds the nature of the applicant and sponsors commitment to each other is not demonstrative of a couple in a genuine spouse relationship at the time of application.
The Tribunal considered if there were other factors relevant to considering if the applicant was the spouse of the sponsor at the time of application.
The Tribunal acknowledges the applicant’s claimed difficulty obtaining evidence following the claimed family violence she suffered perpetrated by the sponsor. The Tribunal notes however this application is the applicant’s second visa application on the basis of her relationship with the sponsor. Despite the applicant making a second application and being represented by a registered migration agent, the visa application contained minimal documentation to evidence her relationship when she made the application prior to the relationship having ceased.
As found in the preceding paragraphs, the lack of evidence from sources external to her claimed relationship such as her parents, weighs against a finding the applicant’s relationship with the sponsor was genuine at the time of the application.
Having considered the reg 1.15A(3) matters the Tribunal is not satisfied that at the time of visa application the relationship between the applicant and sponsor was genuine and continuing as required by s 5F(2)(c).

On the basis of the above the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time the visa application was made.
Therefore the applicant does not meet cl.820.211(2)(a).
The applicant has not held a subclass 300 visa and has made no claim that she meets the alternative criteria in cl 820.211(5), (6), (7), (8), or (9).
As the Tribunal has determined the applicant was not the spouse of the sponsor at the time of application, she cannot meet the time of decision requirements. The Tribunal therefore is not required to further consider the applicant’s claim for family violence.
For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
P. Maishman
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).