Nguyen (Migration) - [2024] AATA 1161

Nguyen (Migration) [2024] AATA 1161 (2 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Long Van Nguyen
VISA APPLICANT:  Mrs Thi Truc Linh Nguyen
REPRESENTATIVE:  Ms Dao Nguyen (MARN: 1681367)
CASE NUMBER:  1902036
DIBP REFERENCE(S):  BCC2018/2420226
MEMBER:Tegen Downes
DATE:2 May 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

Statement made on 02 May 2024 at 4:07pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – genuine and continuing relationship – validly married in home country – financial, household and social aspects of relationship and nature of commitment – sponsor’s significant financial support – inconsistent evidence about applicant’s work, finances and living arrangements – no corroborating evidence of sponsor’s visits and parties’ travel to other countries – witness statements given little weight – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 12, 65, 359A
Migration Regulations 1994 (Cth), Schedule 2, cls 309.211(2)(a), 309.221(1)(a)
Marriage Act 1961 (Cth), Part VA
CASES
Ally v MIAC [2008] FCAFC 49
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
MIEA v Poche (1980) 4 ALD 139
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 25 January 2019 to refuse to grant the visa applicant (the applicant) a Partner (Provisional) (Class UF) visa under section 65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 4 June 2018 on the basis of her relationship with her sponsor, the review applicant (the sponsor). 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 delegate refused to grant the visa on the basis that the applicant did not satisfy

cl 309.211(2) of Schedule 2 to the Regulations because the delegate was not satisfied, based on the evidence and information before them, that the applicant was the ‘spouse’ of the sponsor, within the meaning of the Act.
The sponsor appeared before the Tribunal on 28 February 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant. The hearing was conducted with the assistance of an interpreter in the English and Vietnamese languages.
The sponsor was represented in relation to the review. The representative filed written submissions dated 2 February 2024.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
ISSUES AND LAW
This review application relates to an offshore application for a provisional partner visa to enable the applicant to come to Australia on a temporary basis.
The issue in this review application is whether, at the time the visa application was made, and at the time of this decision, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nguyen (Migration)

Details

AGLC: Nguyen (Migration) [2024] AATA 1161
Case: [2024] AATA 1161
Decision Date: 2 May 2024

CaseChat Overview and Summary

This matter concerned an appeal by a visa applicant, a citizen of Vietnam, against the refusal of her Partner (Provisional) (Class UF) visa. The applicant claimed to be the spouse of an Australian citizen. The core of the dispute revolved around whether the applicant and her sponsor were in a genuine and continuing married relationship, as required by the Migration Regulations 1994.

The Tribunal was required to determine if the evidence presented established a genuine and continuing married relationship between the applicant and the sponsor. This involved assessing various aspects of their relationship, including financial, household, and social elements, as well as the nature of their commitment to each other. Crucially, the Tribunal had to consider whether inconsistencies in the evidence provided by the applicant and the sponsor regarding the applicant's employment, finances, and living arrangements undermined the genuineness of their relationship.

The Tribunal's reasoning focused on significant discrepancies in the evidence provided by the applicant and the sponsor. These inconsistencies related to the applicant's employment status, her living arrangements, the use of financial support from the sponsor, and the sharing of expenses when they were together. The Tribunal noted that evidence of events after the visa application could be relevant if it logically assisted in determining the existence or non-existence of facts relevant to the issue at the time of application. Given these material inconsistencies, which suggested a lack of awareness of each other's lives, the Tribunal found that the applicant and sponsor did not have a genuine and continuing married relationship.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Partner (Provisional) (Class UF) visa, finding that she did not satisfy the criteria for its grant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In forming a view of the relationship at the time of application, the Tribunal must consider all relevant evidence, which may include evidence of events after the date of application insofar as it assists in the task of determining whether the visa applicant and the sponsor were in a partner relationship at the time of the application. Evidence of events after the visa application is relevant if it tends logically to show the existence or non-existence of facts relevant to the issue to be determined: Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139.CONSIDERATION OF CLAIMS AND EVIDENCEBackground The applicant is a 33-year-old woman from Vietnam. She claims to be the ‘spouse’ of the sponsor, a 54-year-old Australian citizen who was born in Vietnam. He is once divorced, with one adult son from his first marriage. The couple claim to have met in July 2009 at a coffee shop in Vietnam and to have spent time together during the sponsor’s two-month stay in Vietnam. They claim that after the sponsor returned to Australia, they commenced a long distance relationship. They claim that they have subsequently spent time together on seven occasions, in 2012, 2015, 2016, 2018, twice in 2019 and 2022. Following the hearing, the Tribunal sent a letter to the sponsor pursuant to s 359A of the Act, inviting him to give comments on or respond to the certain information in writing. Relevantly, the letter stated:In conducting the review, we are required by the Migration Act 1958 (Cth) (the Act) to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.Please note, however, that we have not made up our mind about the information.The particulars of the information are:· The visa applicant gave evidence to the effect that she has been in paid employment for approximately three months, working eight hours per day, six days per week. This is inconsistent with the evidence you gave, which was to the effect that the visa applicant is unemployed because she has to care for her mother. · The visa applicant gave evidence to the effect that she lives either at her parents’ house or a house she purchased approximately one year ago, and that she spends approximately two to three days per week living alone at the house that she owns. This is inconsistent with the evidence you gave, which was to the effect that the visa applicant lives with her parents.· The visa applicant gave evidence to the effect that she used the financial support that you provide to her to purchase the house that she owns. This is inconsistent with the evidence that you gave, which was to the effect that the visa applicant uses your financial support for her normal day-to-day expenses.· The visa applicant gave evidence to the effect that when you have been together in Vietnam, you have shared expenses. This is inconsistent with the evidence you gave, which was to the effect that you have paid for all expenses when together. This information is relevant to the review because it is a requirement under subclause 309.211(2)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) that the visa applicant is your ‘spouse’, which means that you are in a ‘married relationship’ as defined in s 5F of the Migration Act. The conflicting information before the Tribunal suggests that you and your sponsor do not have a genuine and continuing relationship as it suggests that you are not aware of material information concerning the visa applicant’s life, including her living arrangements and employment.If we rely on this information in making our decision, we may find that you and the visa applicant are not in a ‘married relationship’ and affirm the decision to refuse the visa applicant’s Partner (Provisional) (Class UF) visa.

Decision

Reasons for decision

For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.DECISION The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.Tegen DownesMemberATTACHMENT - Extract from Migration Regulations 19941.15ASpouse(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).

Ratio Decidendi

Legal Principle Established

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