Nguyen (Migration)

[2024] AATA 1675

Nguyen (Migration) [2024] AATA 1675 (6 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Thi Ngoc Thanh Nguyen

VISA APPLICANTS:  Mr Ba Son Tung Le
Mr Dang Nhu Tan Le
Miss Dang Nhu Huynh Le

REPRESENTATIVE:  Mrs Maria Kieu Do (MARN: 0955639)

CASE NUMBER:  2007459

DIBP REFERENCE(S):  BCC2019/1848482

MEMBER:Ann Duffield

DATE:6 June 2024

PLACE OF DECISION:  Canberra

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

Statement made on 06 June 2024 at 11:58am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – 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), r 1.15A; Schedule 2, cls 309.211, 309.221

CASES
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 on 23 April 2020 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (the Act).

2. The first named visa applicant (the visa applicant) applied for the visa on 14 April 2019 on the basis of their relationship with their sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because they were not satisfied that the applicant was the spouse of the sponsor within the meaning of the Migration Act.

4. The review applicant (sponsor) appeared before the Tribunal on 28 May 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant.

5. The review applicant was represented in relation to the review.

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

   BACKGROUND

7. The applicant is a citizen of Vietnam born in November 1973 (50 years old). The secondary applicants are his children born in April 2002 (22 years old) and December 2008 (16 years old). He has declared one previous marriage which ended in divorce on 21 March 2018. He first travelled to Australia in 2017 and departed for the last time on 21 March 2019. He remains offshore.

8. The sponsor is a citizen of Australia born in February 1961 (63 years old). She migrated to Australia in 1994 on a spouse visa. She and her husband were divorced in April 1997.  There are no children from this marriage and the sponsor has declared no other relationships. She has travelled to Vietnam on several occasions to see the applicant with the last time being in 2023.

9. The parties claim to have first met in February 2018 when the applicant’s mother asked him to pick up the applicant from the airport. The parties claim they conducted their relationship in secret until the applicant travelled to Australia in 2019 when the applicant proposed marriage to the sponsor on 15 February 2019 and they were married on 16 March 2019. They then travelled to Vietnam together in March 2019 and the sponsor returned to Australia in April 2019. The application for the visa was lodged in April 2019 and refused by the delegate on 23 April 2020.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant is the spouse of the sponsor within the meaning of the Migration Act.

    Whether the parties are in a spouse or de facto relationship

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

12. ‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in            reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) is effectively a question which must be answered: He v MIBP[2017] FCAFC 206.

    Are the parties validly married?

13. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties were married in Australia 16 March 2019. 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).

    Before the Tribunal

14. The Tribunal has before it a copy of the department’s file and the delegates decision which was provided to it by the applicant.

15. The parties also provided further information including the following documents:

    a.Copies of relevant divorce and marriage certificates

    b.Identity documents of all parties including the children

    c.Copies of receipts for the wedding, money transfers, various goods and services and airline tickets

    d.Relationship statements from both parties dated 2020 and 2023

    e.Statements of support from friends and family, statutory declarations from friends and family and numerous photographs

    f.Numerous pages of text messages between the parties between 2019 and the present in Vietnamese as well as Facetime screenshots.

    Are the other requirements for a spouse relationship met?

16. The Tribunal has considered 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.

17. The parties have stated that they have no joint assets or liabilities and are independent financially as they live in separate countries. The sponsor was in receipt of a carers pension and does not otherwise have paid employment. She has sent the applicant around $3,500 for gifts over time since 2019. She has stated that she will be able to support the applicant and his two children when they migrate to Australia.

18. The applicant has worked in marketing but has cooking skills that the parties claim he will use to open his own restaurant. Both told the Tribunal that he has had experience cooking as he does so for a charity providing meals for the homeless and disadvantaged.

19. The Tribunal has considered the nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

20. The sponsor told the Tribunal that she was receiving the carer pension in relation to her mother who passed away a short time ago. She currently receives jobseeker payments and says that this covers her expenses. Her mortgage is paid off and her younger sister, her brother and his wife and son live with her. She says this is where the applicant and his two sons will live until they decide what to do next. When the Tribunal questioned how seven people would be able to live in a three-bedroom house she said they are used to it. The Tribunal pointed out that the applicants two sons were 22 and 16 and may find it inconvenient. The sponsor said that if it was too inconvenient, they would find something to rent for themselves.

21. The Tribunal questioned both parties about what arrangements or enquiries had been made in relation to the education of the two boys and their response did not persuade the Tribunal that they had given the matter the kind of consideration that it would expect. Neither the applicant nor his sons speak English well or at all and the eldest is part way through a university course that he would be unable to finish until he learned English. The younger is in Year 11 and again, the Tribunal would expect that at such a pivotal point in a young man’s education, some serious consideration would have been given to how he could complete his high school education successfully in Australia.

22. The parties have not shared a household as they live in separate countries. The sponsor has travelled to Vietnam to visit the applicant on two occasions for a total of a few weeks and they claim to have lived together for a few weeks when the applicant was in Australia between February and March 2019. They claim to want to be able to live together as a family and support each other emotionally and financially.

23. The Tribunal has considered the social aspects of the relationship – including whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

24. The parties married in Australia as that is where the applicant’s mother resides. There are numerous photographs of the parties together and with others including their wedding. The sponsor’s mother and 5 siblings reside in Australia.

25. The parties stated that whilst they kept their relationship secret in the initial stages, they represent themselves to family and others as a married couple.

26. The Tribunal has considered the nature of persons' 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.

27. The parties claim to be in a long-term relationship and that they draw a significant degree of companionship and emotional support from one another as evidenced by the many phone calls they have made to each other the three trips the sponsor has made to Vietnam.

28. They claim to have first met in 2018 but kept it secret until 15 February 2019 when the applicant proposed to the sponsor on his second visit to Australia. However, there is no evidence, of any kind, of the existence of the relationship prior to 15 February 2019 when the applicant allegedly proposed to the sponsor when he arrived in Australia. There are no receipts or dated call records, for example, that show any communication between them prior to 15 February 2019, and no dated photographs.

29. When asked if there was anyone who knew about the relationship prior to 15 February 2019 the applicant said that two people who lived in her area knew however they have moved away. When pressed she said that her siblings also knew however, she has provided no evidence of that. Equally, when the Tribunal asked the applicant if anyone knew about the relationship, he said that two friends of the sponsor knew but no-one in their families knew. Again, there is no evidence of any contact between the applicant and the sponsor prior to 15 February 2019.

30. The Tribunal questioned the parties about the marriage proposal and asked how it came about and where they were. The sponsor said that after she picked him up from the airport they went home and talked. After pressing the applicant for details and after a considerable period of questioning, the applicant said that the sponsor and his mother picked him up from the airport and went back to his mother’s house. When they got there, they had a meal together and he told his mother about their relationship, and they all agreed that he and the sponsor would get married. The following day they had agreed to go and tell the sponsor’s mother. In the morning three friends collected the two of them in the morning and they went to the sponsor’s mother’s house (also the sponsor’s house). The applicant said that the two mothers then talked about when to organise the wedding and his mother chose the date of 16 March. After that they drove his mother home and then drove to a Chinese restaurant which they booked for the wedding party.

31. When asked who made the arrangements for the wedding, including the celebrant, the applicant told the Tribunal that his wife looked after everything.

32. The Tribunal then questioned the sponsor about the day of the proposal. She told the tribunal that she and his mother picked up the applicant from the airport and went home. In the evening they talked about getting married. The next day the three of them went to her mother’s house and they talked. The sponsor said that the decision was up to her and then the two of them (she and the applicant) made some arrangements and booked the restaurant. She said that she found a celebrant and went to see some clothes and the two mothers were very happy.

33. Asked who contacted the celebrant and when did they go and talk to them and lodge the necessary paperwork the sponsor said that she asked a friend if they knew a celebrant and that person introduced her to the celebrant. She said that they were not available on the day they wanted the ceremony. The Tribunal put to her that they had already decided on a date and booked the restaurant.

34. When pressed by the Tribunal for more detail and clarity it emerges that the applicant approached the celebrant a few days after the discussion between the mothers. She only talked to them on the phone and claimed that they did not have to meet the celebrant or fill out any forms or provide any paperwork. She said that they just had to tell her the date and the place.

35. The Tribunal put to the applicant that a marriage had to be registered one day and one month prior to the date of the ceremony and said that given that the applicant did not arrive in Australia until 15 February (which was a Friday) and she did not talk to the celebrant until several days later, they would not have had time to register. The Tribunal asked if they had to provide identity documents, or proof that they were both available to marry she said she didn’t know anything about that. She said she just talked to them over the phone.

36. The Tribunal put to the sponsor that the account of herself and the applicant at the hearing was different in significant respects to the statutory declarations they had provided in the past. The Tribunal put to her that in their statutory declarations they said that after she and his mother picked up the applicant from the airport they went to a restaurant and that’s where the proposal was made. She said it was a long time ago and she was very sad and worried about her sister.

37. The Tribunal put to her that in her statutory declaration she said that the applicant’s mother made plans to see a marriage celebrant the next day (which would have been a Saturday) so that they could be married as soon as possible. The Tribunal asked which account was truthful and she said that she honestly couldn’t remember exactly what happened. The Tribunal put to her that her account now was that she made the arrangements with the celebrant herself several days after the applicant arrived on 15 February 2019 and she confirmed that was what happened.

38. The Tribunal put to the sponsor that there was not enough time from the arrival of the applicant to the 16 March for arrangements to be lawfully made. The Tribunal put to her that the applicant arrived on the 15^th of February, and she said that she waited several days before contacting the celebrant which would mean less than a month and a day between registering the marriage and having the wedding. The Tribunal put to the sponsor that it sounded like all the arrangements for the wedding had already been made before the applicant arrived and the only reason he came to Australia at that time was specifically to get married. The sponsor denied that there was any prior arrangement.

39. In a written response to the Tribunal’s concerns received after the hearing, the applicant’s representative states that she assisted the sponsor prepare her statutory declaration in which she states that her mother-in-law was the one who organised the marriage celebrant however she now sees that she misunderstood the sponsor who said that her mother-in-law prompted her to call the marriage celebrant. She apologises for the error.

40. Even if the Tribunal accepts that errors can be made, this statement does not address the more serious concern in relation to where the proposal occurred which, according to the statutory declarations was in a restaurant, but according to the oral evidence it happened at the home of the applicant’s mother. These are not events that can be so easily forgotten unless they have been fabricated after the event to suit a timeline and are not the lived experience of either the sponsor or the applicant.

41. The sponsor also provided a statutory declaration wherein she apologies for providing incorrect information about the marriage celebrant. She now states that it was her who contacted the celebrant. She also corrects a statement at the hearing where she said that she contacted the celebrant a “few days afterwards”. She now states she recalls that she asked the celebrant for the earliest possible date and was told 16 March and she and the applicant then went to see her and provided all the documents and completed the formalities.

42. The Tribunal finds these corrections after the fact are self-serving and lack credibility. At the hearing the sponsor repeatedly told the Tribunal she knew nothing of any documentation that she was required to provide and only spoke to the celebrant on the phone to tell her the date and the venue. They had already settled on the date, according to the evidence of the applicant and the sponsor and this was agreed with their mothers prior to the call to the celebrant being made. This is a significant departure from what she is saying now. Equally, the Tribunal finds it implausible that the sponsor forgot that she physically met with the celebrant face to face to provide documents and sign papers. She was adamant in her oral evidence that she only ever spoke to the celebrant on the phone and denied any knowledge of having to produce documents.

43. In the context of the significant contradictions in the oral and written evidence which the parties have not, in the mind of the Tribunal adequately explained, the Tribunal is not satisfied that the parties have a mutual commitment to a shared life as husband and wife. The Tribunal is not satisfied that the parties had even met each other prior to the meeting on 15 February 2019 or if they did, they were not in a relationship, secret or otherwise between then and their meeting in February 2019, but contrived the marriage to secure his residence in Australia to be close to his mother. His divorce from his first wife in July 2018 was also, in the mind of the Tribunal, contrived to support his application for a partner visa and the Tribunal is not persuaded that he and his ex-wife are still not living together. Nor is the Tribunal satisfied that the parties had any involvement in the arrangements for the wedding but finds that the arrangements for the wedding had been made on their behalf by third parties, in all likelihood prior to the applicant’s arrival.

1. The parties have provided pages of screenshots of Facetime and of chats between themselves, but none prior to 2019; the Tribunal accepts that the sponsor has visited the family of the applicant in Vietnam and that there are photographs of them together and with others. In the context of the Tribunal’s concerns noted above, these can be seen as staged for the purpose of supporting their application. The same can be said of the money transfers from the sponsor to the applicant The sponsor is a pensioner on a limited and fixed income. The applicant has a fulltime job. Its difficult to see why she would send him such a significant sum of money in the circumstances unless it was done solely for the purposes of lending support to their application.

2. A contrived marriage also, in the Tribunal’s mind, explains the apparent lack of detailed planning in relation to the further education of the applicant’s two sons and their accommodation arrangements when they arrive in Australia.

3. The Tribunal has also considered the statutory declarations and statements provided by friends and family members.

4. The statement of the applicant’s mother places the two meeting in 2018 by inference only and in any case, given the weight of concerns held by the Tribunal about the relationship between the applicant and the sponsor and the self-interest of the sponsor’s mother to support his application to come to Australia, the Tribunal gives this little weight.

5. Ms Thai Kim Ngan is her statement claims to have only met the applicant in 2019 and the sponsor in 2021. Mr Thi Thanh Tam Nguyen has known the applicant since 2003 and claims that the applicant has told him that he met the sponsor in 2018. Mr The Duy Trinh has known the applicant since 2013 and the sponsor since 2019. He does not mention that the parties knew each other in 2018. Ha Tan Dat has known the applicant since 2017 and notes that the applicant told him about his feelings for the sponsor in 2018. The revelation from some declares that they were aware of the relationship between the parties does not align with the statements of the applicant or the sponsor that the relationship was kept secret from everyone. These statements also follow the same template and contain the same information. As such the Tribunal cannot be satisfied that they are the genuine reflections of whomever has signed them.

6. Ms Thi Tuyet Nguyen is a good friend of the applicant’s mother and has known him for five years. She places the parties meeting in 2018 by inference. Ms Xuan Thanh Thi Nguyen is the sponsor’s younger sister. Her statement is vague yet supportive of the marriage. She does not say when the sponsor met the applicant. John Huang is the uncle of the sponsor. He attended their wedding but does not say when they met. Again, in the context of the Tribunal’s concerns with significant aspects of the parties’ evidence, the Tribunal gives these declarations only some positive weight.

7. Having carefully considered and weighed all the evidence, documentary and oral, the Tribunal is not satisfied that the parties have a mutual commitment to a shared life together to the exclusion of all others or that they are in a genuine and continuing marriage. The Tribunal is not satisfied that they do not live separately and apart on a permanent basis.

   CONCLUSION

8. 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 or at the time of this decision.

9. Therefore, the visa applicant does not meet cl 309.211 or cl 309.221.

10. As the primary applicant does not meet the criteria for the grant of the visa, it follows that the secondary applicants also do not meet the criteria.

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

    DECISION

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

    Ann Duffield
    Senior Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

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

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

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

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

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

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

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

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

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

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

    (ii)      any joint liabilities; and

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

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

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

    (b)the nature of the household, including:

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

    (ii)      the living arrangements of the persons; and

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

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

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

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

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

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

    (i)       the duration of the relationship; and

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

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

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

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