NGUYEN (Migration)

[2021] AATA 1086

NGUYEN (Migration) [2021] AATA 1086 (9 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr TRUNG THANH NGUYEN

VISA APPLICANTS:  Mrs THI MUI TRINH
Miss THI CAM TU TRAN
Miss TRINH THANH GIANG TRAN
Master TRONG TRUONG SON TRAN

CASE NUMBER:  1827185

DIBP REFERENCE(S):  OSF2015/071546

MEMBER:James Lambie

DATE:9 April 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211 of Schedule 2 to the Regulations

Statement made on 09 April 2021 at 3:44pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) – Subclass 309 (Partner (Provisional)) – Federal Circuit Court remittal – genuine spousal relationship – validly married in home country – financial, household and social aspects of relationship – informal financial arrangements between family and friends – possibly rehearsed evidence and staged photos – no mention of family connection before meeting (previously married to siblings) – nature of commitment – age gap and review applicant’s health and finances – visa applicant’s comparatively higher status and finances – geographical separation and visits – review applicant’s evasive evidence of contact with former spouse – weighing reasonable suspicion of contrived marriage and objective evidence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15; Schedule 2, cl 309.211

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 18 July 2016 to refuse to grant the visa applicants Partner (Provisional) (Class UF) (Subclass 309) 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 29 June 2015 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 the evidence was insufficient to establish that Mr Nguyen and Ms Trinh were in a genuine spousal relationship.   That decision was affirmed by the Tribunal on 26 May 2017.

4. By consent, the matter was remitted to the Tribunal from the Federal Circuit Court of Australia on the basis that certain findings as to the sponsor’s credibility were founded on a misstatement of the evidence provided at the hearing.

5. The review applicant appeared before the Tribunal on 17 December 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Thi Mui Trinh, Hai Thanh Nguyen and Thi Ngoc Mai Nguyen.

6. The review applicant was represented in relation to the review by his registered migration agents. The representatives attended the Tribunal hearing.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether Mr Nguyen and Ms Trinh are in a genuine spousal relationship.

   Whether the parties are in a spouse or de facto relationship

9. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa 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 visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

10. ‘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 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.

11. With their submissions, the parties’ representatives have included a detailed chronology of the parties’ marital and relationship histories.

12. The review applicant (‘Mr Nguyen’) was born in Vietnam in 1962. He was married for the first time in 1986 to Thi Dung Tran (‘Dung’). There are two children of this marriage:  Hai Thanh Nguyen, born 1987, and Thi Ngoc Mai Nguyen, born 1993. This marriage ended in divorce in June 2001. At some time in the same year, Mr Nguyen met Be Thi Huynh (‘Be’).  Be is an Australian citizen who was in Vietnam on holiday. Mr Nguyen and Be married on 28 March 2002 and lodged an application for a spouse visa for Mr Nguyen and his children. That visa was eventually granted in 2005 and the family arrived in Australia on 27 June 2005. Mr Nguyen and Be separated in 2009 and they were divorced on 21 May 2010.

13. The visa applicant (‘Ms Trinh’) was born in 1979. She met her first husband, Cuong Trong Tran (‘Cuong’), in about 1999 and was married at the end of 2001. Cuong is the younger brother of  Mr Nguyen’s first wife, Dung. The couple had three children, the dependent applicants, born February 2005, November 2006 and November 2012. Ms Trinh and Cuong divorced on 20 March 2013.

14. Mr Nguyen and Ms Trinh met at Hai Thanh Nguyen’s wedding in Vietnam on 31 December 2011.  Mr Nguyen and his first wife, Dung, attended together as parents of the groom. Ms Trinh attended with Cuong, Cuong being the groom’s uncle. The chronology presented by the parties claims that Mr Nguyen and Ms Trinh were introduced to each other at this wedding, which seems surprising given that Ms Trinh and Cuong began their relationship while Mr Nguyen and Cuong’s sister, Dung, were still married and that Mr Nguyen and his children did not leave Vietnam until June 2005, after the first of his children’s cousins was born.  Mr Nguyen returned to Australia in January 2012 and the parties claim there was no further contact between them until 2014.

15. Mr Nguyen returned to Vietnam in April 2014. He learnt in conversation with a friend that Ms Trinh had been divorced for over a year. He obtained her telephone number and invited her to meet for coffee. They began seeing each other regularly, sometimes with her children. Mr Nguyen and Ms Trinh holidayed for few days between the end of April and the beginning of May 2014 in Hue and Quang Binh with Mr Nguyen’s siblings. It was during this trip that the parties say they fell in love.  On their return to Nghe An, Ms Trinh introduced Mr Nguyen as her boyfriend to her parents. Mr Nguyen returned to Australia on 16 May 2014.  They remained in touch by telephone and video calls.

16. Mr Nguyen returned to Vietnam on 6 October 2014. Ms Trinh and her youngest daughter met him in Ho Chi Minh City. Mr Nguyen proposed marriage the following day. They remained together until 16 October when Mr Nguyen left to visit his uncle. Ms Trinh, due to work commitments, was unable to accompany him. Mr Nguyen returned to Australia on 21 October 2014.

17. Mr Nguyen next returned to Vietnam on 6 April 2015. He and Ms Trinh visited family members of both of them at various locations in Vietnam. They planned and organised a wedding for 29 April 2015. They honeymooned at Cua Lo Beach, Nghe An, from 30 April to 3 May and thereafter visited various family members in Nghe An and Hanoi.  Mr Nguyen arrived back in Australia on 21 May 2015. The partner visa, the subject of this application, was lodged on 29 June 2015.

18. Ms Trinh arrived in Australia on 10 November 2015 for a 21-day visit, during which time she stayed with Mr Nguyen.  Her children remained in Vietnam in the care of her mother. She returned to Vietnam on 1 December 2015.

19. Mr Nguyen travelled to Vietnam between 16 February and 3 March 2016, during which time the parties claim to have stayed together.

20. The partner visa application was refused on 18 July 2016.

21. Mr Nguyen travelled to Vietnam between 21 September and 17 October 2016, during which time the parties claim to have stayed together.

22. Mr Nguyen travelled to Vietnam on 19 March 2017. On 12 April 2017 the parties took a three-day trip to Korea. Mr Nguyen returned to Australia on 19 April 2017.

23. The Tribunal affirmed the Department’s partner visa refusal on 26 May 2017.

24. Mr Nguyen travelled to Vietnam between 10 October 2017 and 3 November 2017, staying together at Ms Trinh’s house in Nghe An.

25. Mr Nguyen travelled to Vietnam between 26 April and 24 May 2018, staying with Ms Trinh in Nghe An.

26. The Federal Circuit Court of Australia remitted this matter to the Tribunal on 13 September 2018.

27. Mr Nguyen travelled to Vietnam between 29 April and 26 May 2019, staying with Ms Trinh in Nghe An.

28. Mr Nguyen travelled to Vietnam between 29 July and 14 August 2019, staying with Ms Trinh in Nghe An.  Ms Trinh attended Mr Nguyen’s high school reunion during this visit.

29. The parties have submitted a quantity of photographs, telephone records, receipts, airline bookings and boarding passes, household registration cards, screenshots of text message exchanges (not translated), medical records, bank records, personal statements and statutory declarations.  These are referred to in more detail below.

    Are the parties validly married?

30. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. With the visa application, the parties produced a certified true copy of a certificate of marriage issued by the Socialist Republic of Vietnam on 11 May 2015.  On the evidence, the parties are 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?

    Financial aspects of the relationship

31. In considering the financial aspects of the relationship, I have had regard to any joint ownership of assets; any joint liabilities; the extent of pooling of financial resources; any legal obligations owed by one party to the other; and any sharing of day-to-day household expenses.

32. Mr Nguyen was diagnosed with lymphoma in 2008 and has not worked since that time. At the hearing, he advised that the lymphoma is in remission but that he also suffers from diabetes, cardiac arrhythmia, high cholesterol and lower back pain. He had no money when he arrived in Australia and, only having worked for three years, seems to be financially reliant on NewStart allowance from Centrelink, his application for a disability support pension having been rejected. This is, or has been, supplemented by some casual work he does as a driver and a $70,000 settlement from his former superannuation provider received in November 2013.  He lives in a house at Forest Lake owned by his daughter and son-in-law.

33. Mr Nguyen provided some limited financial records, comprising his Commonwealth Bank Smart Access account statements for the period November 2018 to November 2019, and his Commonwealth Bank GoalSaver account statements for the period December 2018 to June 2019. The latter is of little assistance, showing monthly deposits of $200 for a six-month period. The Smart Access account is reasonably active, showing the receipt of Centrelink benefits and sundry day-to-day transactions. Whenever there is any substantial balance, it appears to be withdrawn in cash. Mr Nguyen’s evidence was that he prefers to deal in cash wherever possible, and that there are significant undocumented arrangements with friends and relatives allowing him access to substantial amounts of cash at will. Mr Nguyen’s representative made quite extensive submissions both at and after the hearing that the Tribunal should not draw any adverse inference from the absence of financial records given the strong preference in Vietnamese culture to transact in cash and to rely on minimally documented matrices of obligations (the hui system) instead of banks. No adverse inference is drawn, but neither is there ready support for Mr Nguyen’s claims of his access to significant funds.

34. Mr Nguyen’s evidence was that, from his superannuation settlement, he withdrew $60,000 in cash (his bank statement shows this occurred on 27 November 2013).  He says that he lent $25,000 each to his son and a friend, and $10,000 to his sister in Vietnam.  His bank statement further shows that, on 13 December 2013, $5000 was transferred to an undisclosed bank account and $5000 was withdrawn in cash on 23 January 2014.  His evidence is that, by the time of the hearing, his son had repaid the loan.  He paid cash instalments and also gave his father cash when it was requested.  The son’s evidence was that he would give Mr Nguyen “a few thousand” whenever he wanted to go to Vietnam.  Mr Nguyen also claimed that his sister repaid him in cash at various times when he was in Vietnam:  he said that he used this money to help support Ms Trinh and to fund aspects of their time together.  The friend, at the time of the hearing, still owed $15,000.  Ms Trinh, in her evidence, showed an exact knowledge of these arrangements.  She named Mr Nguyen’s friend without hesitation, while Mr Nguyen seemed to struggle to recall it in full.

35. The parties provided remittance invoices showing that Mr Nguyen, between the period 22 March 2015 to 9 February 2018, transferred the total amount of $2800 to Ms Trinh.

36. Ms Trinh is an expert exponent of the martial arts known as pencak silat.  She is a three-time world champion and is a career trainer and coach in the discipline.  Her career appears to be lucrative by Vietnamese standards:  the evidence of both parties is that her income equates to about $3400 per month, or nearly triple Mr Nguyen’s Centrelink benefit.  Her bank statement for the first eleven months of 2019 shows deposits of VND510 million (about AU$29,000) which approximates this estimate without allowing for undocumented income.  In this context, the documented remittances from Australia make a minimal contribution to her household income.

37. There is no evidence, apart from some minor household effects, that the parties have any assets or liabilities in common. Neither can I consider the remittances from Australia or the vague claims as to the provision of cash to amount to any pooling of financial resources. There do not appear to be any legal obligations owed by either party to the other. Because the parties live in separate countries, there are obvious difficulties in integrating their financial affairs and I therefore do not attach significant weight to the lack of evidence in respect of these matters. I give some weight to the knowledge each had of each other’s financial affairs.

38. The parties submitted three receipts documenting household purchases (cooker, television, washing machine and water heater) in each of 2015, 2016 and 2017. The date on the receipts coincide with the times at which Mr Nguyen was in Vietnam.  The receipts name both parties as the purchasers.  I give them some limited weight as indicating the sharing of household expenses.

    Nature of the household

39. In considering the nature of the household, I have had regard to any joint responsibility for the care and support of children; the parties’ living arrangements; and any sharing of housework.

40. The parties submitted temporary resident registration cards required under Vietnamese law covering each of the periods during which they claim that Mr Nguyen stayed at Ms Trinh’s house between April 2015 and August 2019.

41. Mr Nguyen has made multiple visits to Vietnam, but he does not claim to have established a permanent household with Ms Trinh. His evidence is that he stays for as long as he can without jeopardising his NewStart benefit. At the hearing, he showed familiarity with the names and interests of Ms Trinh’s children. This is a matter to which I give less weight than I would were the children not first cousins of his own children.  He claimed to have purchased presents for the two younger children for their birthdays:  shoes and a backpack.  Ms Trinh gave the same evidence.  She did not volunteer other occasions or gifts.

42. The evidence the parties gave as to their household routine when they are together in Vietnam was closely consistent. Both gave evidence that Mr Nguyen sweeps the floor, washes the dishes, hangs out the laundry and takes the children to school by motorcycle. Ms Trinh does the cooking. Both gave the same answers as to the meals they like to share. Ms Trinh gave a detailed description of Mr Nguyen’s medical routine, in substantially identical terms to the evidence he gave.

43. At the hearing, it was a matter of concern to me that the evidence given by each party so closely matched the evidence given by the other that I put to each of them that their testimony had been coordinated or rehearsed between them in advance. Both parties denied that suggestion. Moreover, the evidence of their witnesses (see below) appeared to give nearly exactly the same examples of the division of housework they claim to have seen. The evidence overall was strongly suggestive of having been coordinated. However, I have taken into account that, with the initial application process, two Tribunal hearings and a Court application, and the oversight of experienced representatives throughout, it may well be inevitable that by this stage of the process the evidence of the parties tends to coalesce.

44. I have also had regard to the limited time the parties have spent together as residents of different countries and have weighted this aspect of the relationship accordingly.

    Social aspects of the relationship

45. In considering the social aspects of the relationship I have had regard to whether the 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 parties plan and undertake joint social activities.

46. In addition to 38 bundles of photographs covering the period 2014 to August 2019, the parties submitted statutory declarations or statements from friends and family of both as to the nature of the relationship. Mr Nguyen’s son and daughter also gave oral evidence at the hearing. The parties provided oral and written evidence on their own account as to the social aspects of their relationship.

47. The parties’ representatives have helpfully sorted the hundreds of photographs submitted into bundles corresponding to particular events identified in the relationship timeline. It has been said that quantity has a quality all its own, but this does not necessarily apply, for example, when six photographs are supplied of the couple examining their luggage at an airport. Many of the photographs depict the couple with other people but no attempt has been made to identify who those others are, leaving it to the decision-maker to make informed guesses. Further, there are a large number of photographs of the couple posing in front of various landmarks or purportedly caught in a candid moment without any indication as to who the photographer might have been and how the photograph might have come to be taken. An example of this is in bundle A6, apparently showing the couple at home with Ms Trinh’s children having a meal on the floor: all of the expected parties are present, leaving one to suspect that the photograph is not candid at all but arranged for the benefit of the anonymous photographer. It would seem that, assuming the couple travelled with the camera, the use of it by either of them personally was very rare, with the exception of the inclusion of selfies as a couple.  The photographs, therefore, are of less assistance than their volume would suggest.

1. Nevertheless, it appears clear from the photographs that the couple have met each other’s friends and family, travelled together and attended a number of social events together over some period of years.

2. Two statutory declarations, dated 12 December 2019 and 10 May 2017, have been provided by Thi Ngoc Mai Nguyen, Mr Nguyen’s daughter. The earlier statutory declaration provides a short narrative of the development of the relationship and some observations on the 17-year age difference between the parties. She was relieved that the age difference was not greater. She did not attend the wedding but did invite Ms Trinh to her own wedding in November 2015. She makes very limited mention of her own contact with Ms Trinh, noting that Ms Trinh stayed with Mr Nguyen at Ms Nguyen’s family home when in Australia for the wedding and making general observations as to her character without claiming to have formed any personal relationship with her.  Otherwise, she claims only that she would say hello or ask how she was going when Ms Trinh was on the phone with Mr Nguyen.  She makes no mention of her family relationship with Ms Trinh’s former husband, nor of the fact that Ms Trinh’s children are her cousins.

3. Ms Nguyen’s statutory declaration of 12 December 2019, in addition to repeating and relying upon her earlier statutory declaration, make some observations in relation to why she does not think it would be in Mr Nguyen’s interests to relocate to Vietnam owing to his health and the cessation of his Centrelink benefits. She makes no more detailed claims as to her relationship with Ms Trinh than in her first statutory declaration.

4. Her oral evidence, Ms Nguyen provided little more detail as to her relationship with Ms Trinh. She noted that Ms Trinh “sent respect” on the birth of Ms Nguyen’s son and had gifted her more money than she expected as a wedding present. To the extent that she had claimed to have had brief contact with her during the couple’s telephone conversations, she only added that, from time to time, she joined in quickly on video calls and has shown her baby to her.

5. Two statutory declarations, dated 12 December 2019 and 10 May 2017, were provided by  Chac Van Le (Mr Nguyen’s friend since 2009). In his earlier statutory declaration, he claims to have travelled with Mr Nguyen to Vietnam for Mr Nguyen’s son’s wedding.  He claims that “there both [Mr Nguyen] and I met [Ms Trinh] for the first time.”  He says he was too busy running his restaurant to attend Mr Nguyen’s and Ms Trinh’s wedding, but that Mr Nguyen showed him the photographs. He claims that he met Ms Trinh several times on her visit to Australia in 2015, but makes no observations about her, other than  witnessing that [the couple] ‘are very much in love’ and that she cooked ‘authentic Vietnamese food.’  His later statutory declaration seeks only to repeat and rely upon his earlier statutory declaration, save to add that Mr Nguyen has complained of the difficulty of the immigration process, and to opine that Mr Nguyen is ‘a good natured and honest man’ who would not marry and sponsor Ms Trinh unless he truly loved her.  There is only limited weight that I can give to evidence so lacking in detail. 

6. The statutory declaration of Thai Binh Nguyen (a mutual friend of Mr Nguyen since about 2000 and Ms Trinh since 2005) claims that he was at the wedding in 2011 when the couple met.  He claims to have given Ms Trinh’s telephone number to Mr Nguyen on the latter’s visit to Vietnam in 2014.  He attended the wedding in 2015, travelling from Australia (having migrated in 2014) and claims to have socialised with the couple several times after the wedding.  He says that he saw that Ms Trinh’s children liked Mr Nguyen very much.  This statutory declaration is not accompanied by any evidence that the declarant is an Australian citizen or permanent resident, attaching only a copy of his Vietnamese passport.  Nevertheless, I have given the account of the 2011 and 2015 weddings some weight.

7. Thi Tam Nguyen (Mr Nguyen’s younger sister), resident in Vietnam, has provided two statements, neither accompanied by any form of identification.  The first is undated but evidently was made in 2017.  It does not mention the 2011 wedding at which the parties claim to have met and to which she was presumably invited.  It does not mention the family connection with Ms Trinh.  She does, however, claim to have attended the 2015 Vietnam wedding.  She says that Mr Nguyen and Ms Trinh visited her together in 2016 and that she sees the couple whenever Mr Nguyen is in Vietnam.  She gives a brief description of Mr Nguyen’s relationship with Ms Trinh’s children. She does not mention the substantial loan Mr Nguyen claims to have made to her, nor does she repeat his claim that he would collect instalments from her to pass on to Ms Trinh, which would have been highly relevant to her assessment of the relationship.

8. Thi Tam Nguyen’s second statement, dated 11 December 2019, seeks to correct the omission as to the loan.  She claims that, around the end of 2013, she borrowed VND 190 million (about AUD$10,000) to repair her house. The arrangement was that she could repay this amount slowly and that, every time Mr Nguyen came to visit Vietnam, she would give him the equivalent of AU$650 - 950, depending on how much he needed. She says that by May 2019 the loan had been fully repaid. She says that, in July 2019, Mr Nguyen returned to Vietnam and that she and her husband visited the couple at Ms Trinh’s house. On each occasion, she says, she noticed Mr Nguyen helping with household chores such as cleaning the house and doing the laundry, as well as helping in the kitchen.

9. The statement of Dinh Tuan Trinh (Ms Trinh’s father) is also not accompanied by any form of identification.  He claims that, in about 2014, Ms Trinh ‘told us that she has getting to know a man named Thanh.’  No mention is made of the family connection, especially that his daughter’s own children and those of Mr Nguyen are first cousins, or of the likelihood that he and Mr Nguyen must have met on more than one occasion.  His description of the couple’s household routine when they were together matches the evidence of the parties very closely, as does his description of the presents Mr Nguyen purchased for the children.

10. The statement of Cong Manh Nguyen (Ms Trinh’s friend and neighbour) is also not accompanied by any form of identification.  He claims to have observed the breakdown of Ms Trinh’s first marriage. He attended the wedding in 2015.  He has met Mr Nguyen on his subsequent visits to Vietnam and says he witnessed the close relationship between Mr Nguyen and Ms Trinh’s children, and between the parties.

11. The statement of Phuong Thao Tran (Ms Trinh’s friend of 15 years) is also not accompanied by any form of identification. He claims to have observed the breakdown of Ms Trinh’s first marriage.  He also claims to have met the couple in Saigon in October 2014, to have dined with them and seen that they were happy in each other’s company.  He attended the wedding in 2015.  He says that he dines with the couple every time Mr Nguyen returns to Vietnam.  He goes on to say, “[Ms Trinh] loves [Mr Nguyen] to the extent that she could give up her fame, career, great reputation which she has built over so many decades in Vietnam and is prepared to become a small and mostly simple women if she were to be granted a visa to go to Australia and live with [Mr Nguyen].”

12. The statutory declaration of Hai Thanh Nguyen (‘Hai’), Mr Nguyen’s son, dated 12 December 2019, provides details of the $25,000 loan referred to in paragraph 34.  He claims that, “every month I would try to give my father about $250. Every time he went to Vietnam, I would also give him between $3000-$4000 as he needed spending money in Vietnam.”

13. Hai’s account as to how the couple met says merely, ”in about 2014, my father went to Vietnam and there he fell in love with Aunty Mui”. It is strange that he would fail to mention that it was at his own wedding two years earlier that the meeting occurred and the capacity in which Ms Trinh was invited.  His reference to her as “Aunty Mui” is the same honorific applied to his former stepmother, and therefore not a reference to her having been his aunt by marriage.  In oral evidence, he agreed that Ms Trinh was a guest at his wedding in 2011, accompanied by Cuong, whom he initially described as a friend of the family before correcting his evidence to confirm that Cuong is his uncle.

14. While, in most cases where the parties are geographically separated, allowances should be made for the limited scope for joint social activities, the visits the parties have made to each other have been frequent enough to allow the submission of a substantial body of evidence. The material to which I give the greatest weight is the evidence of Mr Nguyen’s frequent travel to Vietnam which has been carefully documented in the photographs. The weight that I do apply to that evidence is attended by doubts as to how that travel is financed (not a single receipt for the numerous airline tickets was tendered) and the impression gained from the photographs that they were taken to bolster the application. As noted in various places above, the evidence of the parties’ witnesses was lacking in personal insights into the couple that might be expected from diverse individuals and, on matters such as their household routine, appeared formulaic.  Further, as noted in various places above, the issue of the pre-existing family relationship was not volunteered or elaborated upon by any of the parties or witnesses, even when this might have been expected.  This aspect of the evidence is addressed further below.

15. Taking the evidence as a whole, however, there are grounds for me to be satisfied that the parties do represent themselves to others as being married to each other, that their friends and acquaintances are of the opinion that the relationship is genuine, and that the parties have planned and attended social events in a manner consistent with that of a married couple.

    Nature of persons’ commitment to each other

16. In considering the nature of the persons’ commitment to each other, I have had regard to the duration of the relationship; the length of time they have lived together; the degree of companionship and mutual support they draw from each other; and whether they see the relationship as long-term.

17. As described in paragraphs 14 to 17 above, the parties claim to have been in a relationship since 2014 and have been married since April 2015.  Between April 2014 and August 2019, they have spent some 263 days together which is not a trivial length of time, given Mr Nguyen’s apparent financial constraints.  I give that some weight.

18. The parties gave written and oral evidence as to the degree of companionship and mutual support they draw from each other. They claim to be a loving and committed couple and the evidence of their witnesses, albeit formulaically expressed, is to a similar effect. In support of that evidence, extensive telephone records were submitted. These records are not complete because, between April 2017 and February 2019, Mr Nguyen was using a prepaid mobile telephone plan for which the provider was unable to access the records. The available records indicate regular communications between the parties with no significant gaps. The gaps that are indicated by the records correspond with Mr Nguyen’s visits to Vietnam. The duration of the calls seems to indicate that they are genuine. I give some weight to these records.

19. There are two aspects of the relationship to which some time was devoted at the hearing. These relate to certain disparities between the visa applicant and the sponsor, and to the family connection between them.  I consider them relevant to the nature of the parties’ commitment to each other.

20. As mentioned above, Ms Trinh is some 17 years Mr Nguyen’s junior. She is in excellent health and has maintained a prestigious and lucrative career in martial arts. The martial arts discipline for which she is at least locally famous, is little known in Australia. By contrast, Mr Nguyen suffers from a number of health conditions which render him, or so he claims, unable to work. As far as can be determined, he relies on Centrelink benefits for his income and has no meaningful assets. He is accommodated by his daughter. The question therefore arises as to what the objective benefits inure to Ms Trinh in seeking to migrate to Australia. In his oral evidence, Mr Nguyen offered that he is mature, can provide support, has access to a Centrelink benefit and can help around the house. He said that their future plans involve Ms Trinh and the children moving into his daughter’s house and Ms Trinh obtaining labouring work in a factory until, perhaps after a few months, they could afford to look for a rental property.  He acknowledged that his Centrelink benefits would be affected by this arrangement but said they would not be stopped altogether.

21. In her evidence, Ms Trinh said she was aware that Mr Nguyen brings very little in the way of financial security, or the prospect of it, into the relationship. She said that, in Vietnam, it is not easy for a woman with three children to find a partner. She said that she did not care what anyone else thinks about the relationship, only that Mr Nguyen loves her and cares for her children. She acknowledged that she has everything that she needs in Vietnam and said that she would not consider moving if the relationship were not important to her.  She said that their plans for life in Australia were to move into Mr Nguyen’s daughter’s house for a few months and to seek labouring work, perhaps in restaurant or similar business where her lack of English would not be so important.  She would undertake English classes as soon as possible.  She had not made any inquiries about coaching opportunities in her martial arts discipline but understood that it is not well-known in Australia.  She said that, if opportunities existed, she could both coach and hold down other jobs. 

22. Given that Ms Trinh faces a likely decline in her living standards, the loss of her local renown and the prospect of drudge work instead of a well-paid career in her chosen field, I expressed some scepticism about her plans.  I asked the parties whether any thought had been given to Mr Nguyen relocating to Vietnam.  Both of them gave the loss of Mr Nguyen’s Centrelink benefits and the state of his health as the reasons for this idea being rejected.

23. The parties’ representatives submitted that I should have particular regard to Mr Nguyen’s preparedness to take on responsibility for Ms Trinh’s children. They submitted that the prospect of permanent residence in Australia was not a disqualifying consideration, and one that combined with Mr Nguyen’s other attributes, may plausibly contribute to the parties’ commitment to the relationship. This may very well be correct but causes me to assess the other evidence very carefully if it appears that the motivations for the claimed relationship are weighted towards a pathway to permanent residency.

24. The family relationship between the parties is a matter to which I have given some consideration.  It was a matter forming part of the reasons for the delegate to reject the parties’ claimed relationship history and, in my view, when combined with other facts and matters is suggestive of the relationship being part of a chain migration scheme.  This relationship has been omitted or downplayed quite consistently by the parties and their witnesses and is also absent from the lengthy written submissions lodged by the parties’ representative. 

25. Mr Nguyen, I was reminded by his representatives after the hearing, disclosed the relationship in his statement of 16 May 2015 which accompanied the visa application.  In that statement, he describes meeting Ms Trinh:  “It was on 31 December 2011 when I came to Vietnam for my son Nguyen Hai Thanh’s wedding.  I met Mui who used to be my first wife’s sister-in-law. We talked and became friends.”  In fact, at the time that they met, Ms Trinh was still his ex-wife’s sister-in-law. The only other reference in the written evidence is in a joint “explanation statement” dated 2 May 2017, in which Mr Nguyen, in reference to the delegate’s findings says: “at that time, Mui was still married with her husband Cuong and Cuong is Dung’s younger brother.” Throughout the parties’ evidence, they say  that this was their first meeting. This is further maintained in the representatives’ written submissions of 11 May 2017 (at paragraph 6.22):  “It was at that wedding that Mui and Thanh were first introduced to each other… At the time of their first meeting, Mui was married and therefore their encounter was on a friendly conversational basis [emphasis added].”

26. As noted in paragraph 14 above, Mr Nguyen and Dung were still married when Ms Trinh and Cuong commenced their relationship in 1999.  Mr Nguyen and Dung divorced only six months before Trinh’s and Cuong’s wedding.  Ms Trinh said she first met Hai at the 2011 wedding and Ms Nguyen at Ms Nguyen’s wedding in 2015.  I consider it very unlikely that there was no contact between Mr Nguyen’s young family and the new couple between 1999 and 2001, and beyond.  Further, Mr Nguyen’s evidence to the Tribunal was that he only met Cuong at his son’s wedding in 2011 and had not seen him after that. Given that he and Dung were married for 15 years, I consider that his evidence that he had never previously met his wife’s younger brother cannot be true.

27. Mr Nguyen was also, in my assessment, evasive when it came to the extent to which he remained in contact with Dung. He acknowledged that she is now in Australia as a permanent resident and ‘believes’ she lives with a boyfriend in the Inala area. Dung came to Australia in 2009 or 2010, sponsored by Hai. Mr Nguyen said that his children are in occasional contact with her.  The evidence of Hai is that he sees Dung more frequently than he sees his father. The evidence of Ms Nguyen is that Dung works at the seafood market at Inala Plaza and that she sees her every time she goes shopping and Dung is a frequent visitor to her home. Mr Nguyen, who lives there, did not mention this.

28. These matters give rise to some caution on my part in accepting the parties’ evidence in full. There are facts and matters, including those in the delegate’s decision, that give rise to a reasonable suspicion that the marriage of the parties is part of a chain migration scheme. However, as I have stated above, there is objective evidence which is also strongly suggestive of a genuine relationship. In particular, the telephone call logs and the frequency of Mr Nguyen’s visits to Vietnam are matters to which I have given considerable weight. It has not escaped my attention that, in the material available to the delegate and the previous Tribunal, these were matters in which the evidence was notably weak. I have considered whether the wealth of subsequent evidence produced was in reaction to those findings but there is no other material in front of me to found that conclusion.

29. Accordingly, though not without misgivings, I find that the evidence is weighted sufficiently towards acceptance that the criteria in r.1.15A(3)(a), (b), (c) and (d), and the other circumstances of the relationship under r.1.15A(2), have been met.

30. On the basis of the above, the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made.

31. Therefore, the visa applicant meets cl.309.211.

32. It follows that the secondary applicants meet the secondary criteria.

33. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.

    DECISION

34. The Tribunal remits the applications for Partner (Provisional) (Class UF) (Subclass 309) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.211 of Schedule 2 to the Regulations.

    James Lambie
    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).