Nguyen (Migration)

Nguyen (Migration) [2024] AATA 1068 (23 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Phuong Linh Nguyen
REPRESENTATIVE:  Mrs Anh Thy Tran (MARN: 1464382)
CASE NUMBER:  1907294
HOME AFFAIRS REFERENCE(S):          BCC2018/1509305
MEMBER:Namoi Dougall
DATE:23 April 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 23 April 2024 at 11:24am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – sponsor passed away – big fight prior to sponsor’s death – financial aspects – nature of the household – residential address history – social aspects – not invited to the sponsor’s funeral – 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 820.211, 820.221

CASES
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 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 3 April 2018 on the basis of her relationship with her sponsor. 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 (Cth) (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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211 because the delegate was not satisfied on the evidence provided that the applicant and sponsor were in a spouse relationship within the meaning of that term in s5F and r.1.15A of the Act and Regulations.
On 17 October 2023, the Tribunal requested that the applicant provided additional information addressing the circumstances set out in re.1.15A.
On 31 October 2023, the applicant’s representative advised that they had not been able to contact the applicant. On 6 November 2023, the applicant’s representative phoned the Tribunal and informed a Tribunal officer that she still could not contact the applicant.
On 14 November 2023, the applicant provided a response to the Tribunal’s hearing invitation which indicated that the sponsor, Mr Khac Lam Tran was deceased. The Tribunal on the same day requested that a copy of the sponsor’s death certificate be provided. Also on the same day an officer of the Tribunal phoned the applicant’s representative requesting that the applicant also provide a copy of the sponsor’s Will. The Tribunal officer also reminded the representative that the information requested in the Tribunal’s letter of 17 October 2023 had still not been provided. The representative stated that the applicant had not provided the information to her, and she would again ask the applicant about the requested information.
On 20 November 2023, the Tribunal wrote to the applicant again requesting that the applicant provide the information requested in its letter of 17 October 2023, a copy of the sponsor death certificate and Will. The Tribunal also requested a statement and additional information indicating that the applicant has close business, cultural or personal ties with Australia.
The applicant appeared before the Tribunal on 28 November 2023, 25 January 2024 and 3 April 2024 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Vietnamese and English languages.
At the first hearing the Tribunal discussed the need for the sponsor’s death certificate and followed up with a further request for the sponsor’s death certificate on 4 January 2024. At the second hearing the Tribunal again discussed with the applicant the need for the sponsor’s death certificate and the applicant explained the issues she had had obtaining the death certificate.
On 7 February 2024, after issuing a summons, the Registry of Births Deaths & Marriages provided a Death Certificate dated 7 February 2024 (the Death Certificate) which is referred to in detail below.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

The issue in the present case is whether the applicant was the spouse of her sponsor, Mr Khac Lam Tran at the time of the application. Further in issue is whether the applicant would have continued to be the spouse of the sponsor if the partner had not died on 21 July 2022. If the Tribunal is satisfied that they were still in a spousal relationship at the time of the sponsor’s death, the Tribunal will then consider if the applicant had developed close business, cultural or personal ties with Australia. The Tribunal when referring to both the applicant and sponsor together will use the term ‘parties.’

Whether the parties are in a spouse or de facto relationship

Clauses 820.211(2) 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 who was an Australian permanent resident.
‘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.
At the hearing the Tribunal explained the above requirements to the applicant. At the third hearing the applicant confirmed that they understood the requirements.

The applicants’ background and migration history

The applicant is a Vietnamese national born in 1997. She has her parents and one brother living in Vietnam. The applicant arrived in Australia on 15 July 2016 on a Subclass 572 visa which was valid until 30 August 2018.
The sponsor was born in Vietnam in 1980 and has his parents and three siblings living in Vietnam and a daughter living in Australia. The sponsor first arrived in Australia on 6 August 2006 on a Subclass 309 visa. On 29 May 2008 he was last granted a Subclass 100 visa and then a Subclass 155 visa on 15 May 2019.
The sponsor was previously married on 24 October 2005 to Thi Hong Duong, and they divorced on 6 October 2017. There is one daughter, Vivian Tran from the marriage who was born in Australia in 2015. Provided was a copy of the divorce certificate issued by the Federal Circuit and Family Court on 6 October 2017.
On the evidence of the Death Certificate dated 7 February 2024, the Tribunal is satisfied that the sponsor died on 21 July 2022.

Evidence at first hearing

At the hearing the applicant stated she came to Australia in August 2016 on a Student visa studying Commercial Cookery. Currently she is residing in Rawson Street Lidcombe and has resided there for about 2 years. The applicant works fulltime at Mecca in George Street Sydney having started in November 2022. Before that she worked at a grocery store in Town Hall from 2019 to July 2022. The applicant confirmed it was Heng Chong Pty Ltd. The applicant confirmed that she has an individual bank account with ANZ. The applicant has two superannuation providers, however, she cannot remember their names.

Initial meeting and development of their relationship

The applicant in the visa application and the sponsor in the sponsorship for a partner to migrate to Australia (the sponsorship form) stated that they met on 17 April 2017 at Smithfield and fell in love with each other on 1 July 2017 at Darling Harbour. He proposed on 21 October 2017 at his home in Bonnyrigg and they were married in Fairfield on 18 March 2018. They made a commitment to a shared live together on 18 March 2018.
In her relationship statement dated 25 March 2018, which was provided to the Department and the Tribunal, and signed by the applicant stated as follows:
·The migration details of the parties as set out above were confirmed.
·The sponsor works for Watson Glass Pty Ltd (Watson Glass) as a supervisor and had worked there since 2007.
·They first met through a mutual friend, Mr Hoang Linh Do who she had known for a very long time as both their families knew each other. They are family friends. Mr Hoang Do also knew the sponsor as they both worked for Watson Glass.
·On 17 April 2017, Mr Hoang Do held a small get together on Easter Monday at his home in Smithfield. The couple met at this party by chance. She did not know that Mr Hoang Do was trying to ‘hook’ her up with his work mate. She did not like the sponsor straight away and treated him as a friend.
·The sponsor called her the next day having got her number from Mr Hoang Do. After a few phone calls the sponsor invited her to lunch and they went out for lunch. After going out together a few times their feelings developed.
·On 1 July 2017 at Darling Harbour the sponsor told the applicant that he loved her. She introduced him to her parents through Facetime. The sponsor introduced her to his friends in Australia.
·On 21 October 2017, they celebrated their birthdays together at the sponsor’s home in Bonnyrigg. He prepared a meal and set the table with roses and proposed after dinner.
·On 18 March 2018, they were married. The wedding ceremony was at Fairfield West in the presence of friends. The applicant also stated that both of them had no family in Australia, but family members could see the photos.
·After they were married, they moved to an address in Leonard Place, Bonnyrigg.
·Under the heading ‘Future plan’ that they are intending to travel to Vietnam and have a wedding reception with both families. They intend to have two children.
Evidence provided at the first hearing by the applicant
At the first hearing the applicant stated that the sponsor died at the beginning of August 2022. The sponsor had asthma and he did not get to his car in time to get his inhaler and died in a parking lot. The applicant confirmed that the sponsor was taken to the funeral parlour. His former spouse was notified of his death, and she arranged his funeral. The Tribunal referred to his former spouse not being the next of kin and that the applicant was the sponsor’s next of kin as she was his spouse. The applicant stated that she was not notified at all as his former spouse was notified. The Tribunal asked why his former spouse was notified of the sponsor’s death and and the applicant stated that in early July 2022 they had a big fight, and they were not living together when he died. They decided that they needed time apart. She was not notified, nor did she receive a missed call from anyone. They met once during that period, and they decided it was not the time for him to come back home.
The applicant also stated in July 2022 that she needed time apart, they were living at her address, so she told him to live with his friend. His friend is Linh Do who lived in Fairfield with his spouse and parents.
The applicant was notified of the sponsor’s death by a mutual friend, his best friend Mr Hoang Do who has been living in Melbourne since the COVID-19 pandemic (the pandemic). The applicant was told about a month later, in beginning of September 2022 when Mr Hoang Do called her.
The Tribunal notes that it is unclear if Mr Lihn Do and Mr Hoang Do are the same person as Mr Hoang Do’s full name is Hoang Linh Do.
The Tribunal asked again about the funeral and the applicant stated that the funeral was held by the sponsor’s former spouse, and she organised everything. The applicant does not know how to contact her or find her nor do their mutual friends as they met after the divorce. The applicant confirmed that the sponsor has one child who is around 8 years old. The applicant stated that she applied 2 weeks ago for the death certificate through the deaths, births and marriages portal (this was after the Tribunal contacted her requesting a copy of the death certificate). She had to provide identification, fill in the form and pay the fee. The applicant confirmed she was provided with an email confirmation. The Tribunal was shown the email confirmation which was on the applicant’s phone and informed the applicant that it did not establish she applied for a death certificate as the applicant could be applying for anything including her marriage certificate.
At the first hearing the Tribunal asked the applicant’s representative if she knew what the requirements were for an application for a death certificate and the representative stated that you need the details of the death and funeral or cremation, as well as, the details of the deceased person. The Tribunal referred to also needing to be the current spouse or child of the deceased and that the former spouse is not the current spouse and the sponsor’s child is too young being only 8 years old so neither of them could apply for a death certificate.
At the hearing the applicant stated that at the time of the sponsor’s death they had been living together at her current address for about 18 months (the Rawson St, Lidcombe address). The applicant stated that his address on his drivers licence was an address in Kalora Ave, Fairfield West (the Fairfield West address) which was his old address. The Tribunal referred to the parties having lived together for so long, but the sponsor had not changed this address and the applicant stated that it did not come up and she did not ask him.
At the first hearing the Tribunal referred to the police being able to ascertain that someone is married particularly as the sponsor and his former spouse had been divorced for five years. The Tribunal stated that it has concerns about what the applicant was telling the Tribunal.
At the first hearing the Tribunal also stated that it was adverse that the applicant had not contacted the sponsor in the month before his death and she was not contacted about his death by anyone for over a month after he died. This suggests that they were not taking a short break in their relationship but that their relationship was not ongoing. The Tribunal referred to having to determine whether they lived together and not separately on a permanent basis and their relationship was a spousal relationship as defined in the legislation up until the time of the sponsor’s death. The Tribunal also referred to not be able to find that the sponsor is dead until the Tribunal is provided evidence of his death and the evidence is a death certificate.
At the first hearing the Tribunal referred to the applicant stating on her own admission that they had not been living together for a month. The applicant stated that it was a break and the Tribunal stated that it was more than a break as there was no communication and more importantly, she was the sponsor’s spouse and the police had not notified her of his death. The applicant stated she had not been notified at all.
The Tribunal asked if this was because his friends did not recognise her as the sponsor’s spouse, and it was only her friends. The Tribunal referred to the information on the file from friends and stated that if they were good friends of the sponsor they would have known about his death. The applicant stated that there was only one mutual friend who was in Sydney at that time. The Tribunal referred to the applicant having not been introduced to his friends. The Tribunal again referred to the applicant being his spouse and that she only knew one of his friends who lives in Melbourne which indicates that there is limited social recognition of their relationship. The applicant stated that they have one mutual friend in Sydney, and he was the only mutual friend who went to the funeral. The Tribunal referred to that mutual friend not notifying the applicant and the applicant stated that he notified her a month later. The Tribunal referred that information being adverse as he is a mutual friend who knows that the sponsor is dead, has been invited to the funeral and does not tell her or even call her to check up on her or do anything else even though he is a mutual friend. The applicant stated that she received a missed call on a message application from him. The Tribunal referred to there being no evidence of the missed call and only one call is unusual when it was about a death and a spousal death.
The Tribunal notes that it has not been provided the log of calls including missed calls made on the messaging application as stated by the applicant.
At the hearing the Tribunal also referred to the information in relation to the period of time from when they met to the time of the visa application as being sparce and that it does not show clearly that the applicant and the sponsor were in a spousal relationship. The information now on files and provided at the hearing indicates that their one mutual friend did not notify the applicant of the sponsor’s death or of the funeral. Individual bank statements have not been provided including the sponsor’s bank statements to show that there was genuine pooling of their finances. The joint account is not sufficient especially as the parties’ wages are not paid into that account. The Tribunal has not been provided with superannuation statements that indicate who are the parties’ beneficiaries. Income Tax Returns have not been provided which show each has declared the other as their spouse. This also indicates that they had not blended their financial matters.
The Tribunal again referred to it being unusual that a former spouse who has been a former spouse for five years would be notified of a spouse’s death before the current spouse who has been his spouse since 18 March 2018.
The Tribunal asked for the applicant’s bank statements from 2019 and her superannuation statement for the last three years. The Tribunal also asked for her PAYG summaries since 2019 that were issued by her employer and the death certificate of the sponsor. The applicant stated she could provide the information as soon as possible. The Tribunal gave the applicant 2 weeks to provide the requested information including the sponsor’s bank and superannuation statements and income tax returns.
The Tribunal asked where the sponsor’s bank statements were sent to and the applicant stated that they were sent to his old home in Bonnyrigg. The Tribunal stated that this is another issue as people usually change their address to receive this type of mail. The sponsor’s income is not being paid into the joint bank account as no income is paid into that account. They were married in March 2018 and moved into his old address in Bonnyrigg for a short period of time. The Tribunal then referred to the sponsor having not changed his address on his bank statements or his driver’s licence in 5 years even though the applicant claimed that they had lived together during that period.

The applicant confirmed that the Fairfield West address is not that of the sponsor’s former spouse’s address, and she does not know where she lives. The Tribunal again referred to it being unusual that the police would have found the sponsor’s former spouse and notified her of the sponsor’s death and not his current spouse particularly as the sponsor and his former spouse had been divorced for over 5 years.
The applicant confirmed that she understood the documentation that needed to be provided and the Tribunal reminded the applicant she can provide a statement addressing the issues raised earlier in the hearing including that the death notice had not been provided to her. The Tribunal also stated the lack of death certificate can also indicate that the applicant is not referred to in the sponsor’s will nor is she a beneficiary under his superannuation.
Requests for information and comment on and response to adverse information
The Tribunal requested the above on a number of occasions as follows:
·     On 17 October 2023 we sent the applicant a request for information. No response received.
·     On 14 November 2023, the Tribunal followed up the requested information on 17 October 2023 and asked for a response. On 14 November 2023 the Tribunal also requested for a copy of the sponsor’s death certificate and his will. No response received.
·     On 20 November 2023, the Tribunal again followed up the requested information and in addition requested that the applicant provide the following information:
·     A statement and supporting information indicating that you, Mrs Phuong Linh Nguyen have developed close business, cultural or personal ties with Australia.
·     At the first hearing the Tribunal again followed up on the requested information, requested further information and allowed time for the applicant to comment on or respond to adverse information.
·     On 29 November 2023, some information was provided which were the applicant’s bank accounts from 9 February 2023 to 9 October 2023 and her Income Tax Returns for the tax years ending 30 June 2021, 2022 and 2023.
·     However, as of date of a further follow up letter, 4 January 2024, the Tribunal had not received most of the requested information and requested in that letter the following:
·     The sponsor, Mr Khac Lam Tran’s death certificate.
·     A statement commenting on or responding to the adverse information discussed at the hearing.
·     Statements for the applicant's and sponsor's joint ANZ account from 3 August 2022 to date.
·     Statements for all of the applicant's and sponsor's bank account that are not joint accounts for the period 1 January 2020 to 8 February 2023 and 10 October 2023 to 30 November 2023.
·     The applicant’s and the sponsor’s superannuation statements for the periods ending 30 June 2020, 2021, 2022 and 2023 indicating the beneficiaries under each of their superannuation.
·     A statement and supporting information indicating that the applicant has developed close business, cultural or personal ties with Australia.
The applicant was given until 25 January 2024, the day the Tribunal had scheduled for a second hearing, to provide the information. With the exception of submission on her close business, cultural and personal ties with Australia, none of the information or a statement commenting on the issues discussed at the hearing, which were requested on 4 January 2024 was provided to the Tribunal and this is referred to further below. The applicant in response to the Tribunal’s letter of 9 February 2024 pursuant to s.359A provided a response and comment on some of the issues the Tribunal raised at the first hearing.
Prior to the second hearing the Tribunal was provided a submission as to her close business, cultural and personal ties with Australia. Also provided was a letter dated 17 November 2023 from the Registry of Births Deaths & Marriages thanking the applicant for her application and requesting 2 forms of current identification.
Death Certificate
As referred to above, the Tribunal was provided with the Death Certificate after the second hearing. On 9 February 2024, the Tribunal provided a copy of the Death Certificate to the applicant. In the letter the Tribunal referred to the following information as follows:
·     At the first hearing held on 28 November 2023 (the first hearing) you stated that your spouse, Mr Khac Lam Tran (the sponsor) died at the beginning of August 2022 and you only found out about his death a month later in the beginning of September 2022 when Mr Hoang Do called you.
·     At the second hearing on 25 January 2024, you stated that you and the sponsor had moved to an address in Rawson Street, Lidcombe in late 2019 and you still live there.
·     At the first hearing you stated to explain why the sponsor’s former spouse was notified by the police of the sponsor death and arranged his funeral, that in early July 2022 you and the sponsor had a big fight and that you were not living together at the time of his death.
The Tribunal then referred to the Death Certificate and stated that informant was the sponsor’s former spouse. Her address was provided which is not the Fairfield West address but had been redacted by the Tribunal. The Tribunal then stated that the Death Certificate indicates that the sponsor died on 21 July 2022 and at the time of his death he was residing at Kalora Ave, Fairfied West and not Rawson Street as stated by the applicant.
The Tribunal also stated that the above information is relevant because the applicant claiming to be the spouse of the sponsor. To meet the definition of ‘spouse’ contained in section 5F of the Act, the applicant and the sponsor must be in a ‘married relationship’. When determining whether the applicant and the sponsor were in a ‘married relationship’ at the time of his death, the Tribunal must consider all of the circumstances of the relationship and be satisfied that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others (s.5F(2)(b)); that the relationship is genuine and continuing (s.5F(2)(c)) and that the parties are living together or not living separately and apart on a permanent basis (s.5F(2)(d).
The Tribunal then stated if the Tribunal relies on the above information in making its decision, it could lead to a finding by the Tribunal that the applicant and the sponsor do not meet the requirements for a spousal relationship within the meaning of s.5F(2)(b)-(d) of the Act. In particular, the above information indicates that the applicant and the sponsor had been living apart on a permanent basis at the time of his death as the sponsor was not living with the applicant at the Rawson St, Lidcombe address. Further, the information indicates that the sponsor may have not lived with the applicant since she moved to Rawson St, Lidcombe at the end of 2019 as he remained at the Kalora Ave, Fairfield West address.
On 26 February 2024, the applicant responded to the Tribunal’s letter of 9 February 2024 (the response). In relation to the circumstances leading to her being informed of her spouse’s death the applicant stated as follows:
·When she was informed about the sponsor’s death by Mr Hoang Do she was in shock and unable to process anything.
·Before his death, the applicant and the sponsor had a big fight that resulted in a temporary separation.
·They had a lot of disagreements and trouble in their relationship that was not able to be resolved quickly and fairly. There was a lot of verbal abuse on the part of the sponsor which she will never be able to forget and has left permanent mental damage.
·Mr Hoang Do is one of the sponsor’s friends and she and Mr Hoang Do are only acquaintances. Whatever the conversation the sponsor had about their spousal relationship with Mr Hoang Do, it must have not put their relationship into a positive light and therefore, Mr Hoang Do was not quick to inform her about the sponsor’s passing.
The Tribunal notes that the above claim contradicts the relationship statement in which the applicant stated that she and Mr Hoang Do are family friends of long standing. It also contradicts Mr Hoang Do’s statutory declaration in which he states that he has known the applicant for ten years and the sponsor for three years.
·They used to hang out together quite often prior to the pandemic but after the pandemic the connection between her and the sponsor’s friends grew distant as they did not have time to see each other or keep in touch. She does not blame Mr Hoang Do for not contacting her as they were not in touch and the sponsor had not kept in touch with his close friend.
The applicant also responded to other issues discussed at the hearing which are referred to elsewhere in this decision.

Were 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. Provided to the Department was a copy of their Marriage Certificate which indicates they were married on 18 March 2018. 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?

Financial aspects of the relationship

Evidence provided to the Department

The applicant stated in the visa application that they have just recently married and are trying to settle into married life, so they do not have any joint financial resources. Although they have opened a joint account. The sponsor stated in the sponsorship form that they had opened a joint account and share the money between themselves. The applicant is still able to access his money from his own bank account.
Despite the above statements the parties did not provide to the Department their joint account bank statement and only provided payslips for the sponsor.
Evidence provided to the Tribunal
The Tribunal was provided with the bank statements from the ANZ joint account #29422 for the period 3 June 2019 to 2 October 2019; 3 August 2020 to 2 December 2020; 2 June 2021 to 3 October 2022. The bank statements are addressed to the Fairfield West address.
The above bank statements indicated many of transactions happen in the CBD of Sydney or surrounding suburbs. There does not appear to be any deposits which are for either the applicant or the sponsor’s salaries into the joint account. Further, there are very limited or no transactions for the purchase of groceries of household items.
Despite requests made by the Tribunal at the hearings and in writing the Tribunal was not provided with any further bank statements either for the missing periods of time or from 4 October 2022 to at least January 2024.
The Tribunal was also provided with bank statements for the applicant’s ANZ bank account #91606 for the period 9 February 2023 to 9 October 2023. The address on the bank statements is one in Phelps Street, Canley Vale. The applicant’s salary does not appear to be deposited into this account. Further, monies are transferred from other ANZ accounts #29449 and #101344.
Despite requests for the applicant to provide her bank statements for the period 1 January 2020 to 8 February 2023 and 10 October 2023 to 30 November 2023 no further bank statements were provided for the applicant’s ANZ account #91606.
Despite the Tribunal’s requests no bank statements for the applicant’s ANZ accounts #29449 and #101344 were provided.
After the first hearing the Tribunal was provided with the applicant’s tax returns for the period ending 30 June 2021, 2022 and 2023. The tax returns included the sponsor as her spouse.
Despite requests the Tribunal was not provided with any of the sponsor’s tax returns or his superannuation statements.
Information provided after the second hearing
Despite its request the Tribunal has not been provided with any bank statements for the sponsor’s bank account(s) nor his superannuation statements for either the applicant or the sponsor indicating who is their respective beneficiary. The Tribunal has also not been provided with a copy of the sponsor’s will.
In the response the applicant stated as follows:
·They rented the Rawson St Lidcombe address and the sponsor also rented the Fairfield West address. This is referred to in more detail below.
·During the pandemic she was the only person working and it was extremely difficult for her to manage paying the rent and covering expenses. The sponsor also had responsibility for his daughter and had to prioritise his daughter needs over those of the applicant.
Third Hearing
At the third hearing the Tribunal explained to the applicant that in relation to the financial aspect of the parties’ spousal relationship, the circumstances the Tribunal must have regard to up until the time of the sponsor’s death are set out in the definition of spouse and include: 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.
Third Hearing – applicant’s evidence
At the third hearing the applicant confirmed that they did not have any joint assets but they wanted to buy a house together. They did not have any joint liabilities. The Tribunal asked about any legal obligations they owed each other and also asked if they included each other in their wills or were they beneficiaries under the superannuation. The applicant stated that during lockdown she was the only one working and she declared him as her spouse. The Tribunal asked if the sponsor was her beneficiary under her superannuation and the applicant stated she does not know much about superannuation, but she declared the tax herself without going through an agent. The Tribunal asked if she was the sponsor’s beneficiary under his superannuation. The applicant stated that for 2019 he did work and pay tax. The applicant does not know about his superannuation before 2019 but she is pretty sure his daughter would be the beneficiary. The applicant has not made a will.
The applicant stated that she recalls that he got money for a flood event, and he went and claimed a payment from Centrelink which was paid into his account. The Tribunal referred to the sponsor’s Centrelink payment and asked how they shared the household expenses. The applicant stated she gave more than him and she paid for some grocery items. The sponsor paid the rent and when they bought something expensive, he gave more than her. The Tribunal referred to this being contrary to what the applicant had stated earlier about it being difficult for her to pay for everything after he lost his job and she understood that he had to support his daughter. The applicant stated that when they spoke about a home, his share of the expenses is more than me. During lockdown the expenses were not much, and she spent her money on food and miscellaneous things. Towards the end of the relationship, she was giving more than him.
The Tribunal asked why she had not provided to the Tribunal more statements from the joint account after October 2022. The applicant stated that after October 2022 that account became her account. The applicant stated that she used the joint account until it expired in August 2023. She used it as if it was her money. The Tribunal referred to it being a joint account and perhaps the estate of the late sponsor may have had an interest in that account. The Tribunal asked if the sponsor had a Will and the applicant stated that if he had a Will, the money would have been left to his daughter and that the person who would have kept the Will would be his ex-spouse and not her.
The Tribunal asked why her bank statements were still being sent to the Canley Vale address in October 2023. The applicant stated that she has changed the address, but she had an option to receive statements by email and she receives her statements now by email. The applicant stated that she has one joint account and one individual account for her salary. She now no longer used the joint account.
The Tribunal asked why she did dot supply the sponsor’s bank statements and the applicant stared that she did not think to access his account to send them to the Tribunal. The Tribunal referred to asking for them on several occasions. The applicant stated that she did not understand what was asked. The Tribunal referred to asking at hearings and in writing for the sponsor’s bank statement and asked if she would provide them if she can access them. The applicant confirmed she would provide them if she can access them. The Tribunal allowed the applicant additional time to provide the bank statements up until 10 April 2024. No further information including additional bank statements for the sponsor’s or the applicant’s accounts were provided to the Tribunal even though the Tribunal followed up the requested information on 17 and 18 April 2024.
Conclusion
The Tribunal gives some weight to the applicant’s income tax returns indicating that the sponsor is her spouse, however, the Tribunal was not provided with the sponsor’s income tax returns. Further, overall, there is a lack of financial information, despite the Tribunal’s requests, that could indicate that the parties have pooled their finances so that they could or did share day to day expenses. There are no bank statements, including for the parties’ joint account, that have deposits for either the applicant or the sponsor’s salary or in the sponsor’s case, any Centrelink benefits. The Tribunal has not been provided with any bank statements for the sponsor’s individual bank accounts and, as referred to above the Tribunal was only provided bank statements for one of the applicant’s ANZ accounts and then for a limited period of time which was after the sponsor had died. As referred to above the transactions on the joint account appear to only be done in around the CBD of Sydney and nearby suburbs and not in Fairfield West, which indicates that the applicant and not the sponsor is operating the joint account.
On the above the Tribunal is unable to assess the sponsor’s contribution to the day to day expenses and his pooling of financial resources, primarily due to the lack of bank statements for the sponsor’s accounts. The applicant has claimed that the sponsor lost his job prior to the pandemic but apart from that claim being repeated in Ms Nhan’s statutory declaration, there is no evidence supporting this claim, and the Tribunal has not been provided with any bank statements of the sponsor’s bank accounts, despite requests, that may substantiate the applicant’s claim. Further, the applicant confirmed at the third hearing that the applicant and the sponsor do not have any joint assets or owe each other any legal obligation. There is no supporting evidence before the Tribunal that the parties pooled their financial resources or shared day-to-day household expenses particularly as on the bank statements provided no salary or Centrelink payments were made into the joint account or into the applicant’s bank accounts.
The Tribunal is not satisfied the evidence before the Tribunal of the financial aspects of the applicant and sponsor’s relationship supports that they were in a genuine and ongoing spousal relationship, particularly at the time of the sponsor’s death.

Nature of the household

The applicant stated in the visa application and the sponsor stated in the sponsorship form that the applicant does the cooking and cleaning, and he helps when he can. On the weekend they do the grocery shopping and laundry together. The applicant also stated that as she does not work, she likes to do more of the housework.
The applicant has not left Australia since she arrived on 15 July 2016, however, the sponsor was last out of Australia from 18 May 2019 to 28 May 2019.
In the Form 80 Personal particulars for assessment including character assessment signed by the applicant on 25 March 2018, the applicant stated that from October 2017 to March 2018 she resided at an address in Regent Street, Chippendale and from March 2018 she resided at an address in Leonard Place, Bonnyrigg where she was still living at the time of the visa application.

Information on the files indicating that the sponsor resided either by himself or with the applicant at an address in Phelps Street, Canley Vale include the following:
·Bank statements for the joint ANZ account from 30 June 2019 to 2 October 2019.
·Bank statements for the applicant’s ANZ bank account #96106 from to 9 February 2023 to 9 October 2023 are also addressed to Canley Vale address.
Information on the files indicating that the sponsor resided with the applicant at an address in Kalora Avenue, Fairfield West included the following:
·Bank statements for the joint ANZ account from 3 August 2020 to 2 December 2020; 2 June 2021 to 3 October 2022.
Information on the files indicating that the applicant resided either by herself or with the sponsor at an address in Rawson Street, Lidcombe (the Lidcombe address) included the following:
·Payslips issued by Satu Marie Pty Limited to the applicant dated 15 December 2022, 28 February 2023 and 16 March 2023.
·Photographs of address labels on seven parcels. Four are addressed to the applicant and three to the sponsor.
The Tribunal notes in relation to the parcels that there is no information as to when the parties received the parcels.
Evidence provided at the second hearing
At the second hearing the Tribunal discussed with the applicant the lack of evidence that the sponsor had resided at the Lidcombe address. The applicant stated that she moved into the Lidcombe address at the end of 2019 with the sponsor. Her flat mate is a women, Ms Lieu Tran who the applicant had worked with at her old job, Heng Chong grocery shop at Townhall. Ms Tran’s sister owned the house and there was a spare room. Ms Tran still lives at the Lidcombe address. The Tribunal suggested that Ms Tran would be a good witness for the applicant as she could state that the applicant and the sponsor resided at the Lidcombe address, and requested that the applicant to obtained a statement from her.

Information provided after the second hearing

In the response as to circumstances in relation to the sponsor’s address still being the Fairfield West address and not Lidcombe, the applicant stated as follows:
·She had stated that the sponsor and her had moved to the Lidcombe address as the sponsor had sold his house where they had originally stayed in. They decided that, in the near future, they would buy a house together. In the meantime, she could find a cheaper place for them near the City so it was easier for her to travel to work.
·The sponsor also stayed at the Fairfield West address that he rented through a close friend so he could leave his furniture and extra personal things there.
·Eventually it became convenient for them to have the two places as they could move between the two places together according to each person’s need.
·As they were only planning to stay at the Lidcombe address for a short time and they were planning to buy a house they did not think of changing the paperwork and drivers licence.
·The pandemic came and their plans had to stop. As referred to in more detail above, the applicant was the only one of them who was working, and she found it extremely difficult to be the main provider and covering rent and other expenses and did not have the capacity to think about paperwork and moving addresses.
Third Hearing
At the third hearing the Tribunal explained to the applicant that in relation to the nature of the household aspect of their spousal relationship, the circumstances the Tribunal must have regard to up until the death of the sponsor are set out in the definition of spouse and include: any joint responsibility for care and support of children; the parties' living arrangements; and any sharing of housework.
Third Hearing – applicant’s evidence
At the third hearing the applicant confirmed that after the parties married, they moved to Bonnyrigg in 2018 for one year and a bit. After Bonnyrigg they moved to 24 Rawson Street, Lidcombe at the end of 2019 and she is still living at Rawson Street. The sponsor remained the owner of the Bonnyrigg address until he sold it in 2020.
The applicant confirmed that she lived in Phelps Street, Canley Vale address from the end of 2016 to sometime in 2017.
The applicant confirmed that she did live at Kalora Ave, Fairfield West address. She stated that she moved between two houses, the Lidcombe address and the Fairfield West address. The Lidcombe address was rented from Ms Lieu Tran who she used to work with. The Fairfield West address was rented by the sponsor from someone he knows. A close friend or co-worker of the sponsor. The Tribunal asked for the name of the friend and the applicant stated that the sponsor owned the house in Bonnyrigg and rented it out and the sponsor rented the Fairfield West address from a friend who she cannot remember. The Tribunal referred to her remembering the name of the friend at the last hearing. The applicant stated last time the Tribunal asked her about where the spouse moved out after they argued and that has nothing to do with the Fairfield West address. The Tribunal asked again after referring to the length of time she had lived there, and the applicant stated that she lived between the two houses. The applicant stated that she could state a name, but she is not sure. The applicant stated that Lidcombe house and there was too much furniture in the Lidcombe house, so he rented the house from one of his friends and that is what he told her.
The Tribunal asked who else lived at the Fairfield West address and the applicant stated that the only people who lived there were the applicant and the sponsor.. The sponsor did bring his child to the Fairfield West address but when she was there it was only her and the sponsor.
At the hearing the applicant stated that when they argued the sponsor went to stay with a friend Mr Hoang Linh Do who also lives in Fairfield West. She has been once or twice to his house for meals, but she does not know the exact address.
The applicant stated that the sponsor moved from the Lidcombe address after their argument in July 2022. The last time she has been at the Fairfield West address was in June 2022 after the argument she still visited the house to get some items. When she had 3 to 4 days off over a weekend, she would be at the Fairfield West address and during the week at the Lidcombe address for the convenience of work.
At the hearing the Tribunal asked why Mr Hoang Do did not tell the police to contact her as he knew they were married, and the applicant stated that the sponsor and Mr Do were no longer close friends after lockdown. The Mr Linh Do and the sponsor were closer together than she and Mr Linh Do. The applicant was asked why Mr Hoang Linh Do did not call and the applicant stated that they were no longer close. The Tribunal asked why Mr Hoang Linh Do did not tell the police that she and the sponsor are spouses. The applicant stated that he was told to attend the funeral only, he did not speak with the police. The applicant then added that the sponsor told her that he stayed one or two nights at Mr Do’s place and if he stayed there or somewhere else, she does not know. The Tribunal referred to her stating earlier that he stayed there. The Tribunal asked if the sponsor went to the Fairfield West address and the applicant stated that he may have gone to that address but as it was at the time of the argument, and she did not care where he went. The applicant after further questions stated that he did go to the Fairfield West address as that was still his address. The Tribunal asked again how she knew he went to the Fairfield West address and the applicant stated that at the time she did not know as she did not care but now with hindsight she knows. The Tribunal asked if she knows or is she is guessing, and the applicant stated that now she knows he went to the Fairfield West address. The Tribunal asked how she knows now, and the applicant stated again that she knows and did not add any more.
At the Fairfield West address as to the cleaning and tidying of the house there was no separation of the chores. When a person who saw something that was untidy, they would tidy. On the weekend there was more time to cook otherwise they have takeaway. They cooked more during lockdown. She cooked but not a lot as the sponsor took her out. During lockdown they stayed between the two houses but when she worked, she stayed in the Lidcombe house as her work included contact with many people and she did not want to spread the disease but on the weekend she went to the Fairfield West address. The Tribunal referred to not being able to move between the two addresses. The applicant stated that she was an essential worker, and she had a letter from her employer. She was able to travel between two houses as she told them she wanted go to the sponsor and was an essential worker.

Conclusion

The Tribunal is not satisfied that the sponsor moved with the applicant to the Lidcombe address.
At the first hearing the applicant stated that:
·At the time of the sponsor’s death, they had not lived together since July 2022 as they had a big fight.
·They had been living at her address, the Lidcombe address for about 18 months but she told him to go and live with his friend, Mr Hoang Linh Do who lived in Fairfield West.
·The address on the sponsor’s drivers licence was the Fairfield West address which was his old address.
The joint bank account statements were addressed to both the applicant and the sponsor at the Fairfield West address from 3 August 2020 until 3 October 2022 indicating that the applicant and sponsor lived there until they moved to the Lidcombe St address or at least the until the applicant moved to the Lidcombe address.
In addition to the above, the applicant stated at the first and second hearings that the sponsor moved out after their argument in June 2022 to Mr Hoang Linh Do’s home which is also in Fairfield West. The applicant changed what she previously stated at the third hearing to the applicant moving to stay with Mr Hoang Do from a few days and that he may have then gone to the Fairfield West address. The Tribunal has some doubts about the claim that the sponsor went to Mr Hoang Do’s home even for a few days as the applicant had stated that the sponsor rented the Fairfield West address, was living there from time to time, had his furniture there and his daughter visited him at that address. In these circumstances it seems unlikely that he would go to a friend’s home after an argument and not his own home at the Fairfield West address.
The applicant also stated that they were living between both the Fairfield West and Lidcombe address from the time they moved to the Lidcombe address. However, there is no evidence indicating that the applicant resided at the Fairfield West address after she moved to the Lidcombe address even for a few days a week.
Further, in relation to the above and as referred above, at the second hearing the Tribunal discussed the lack of evidence that the sponsor had lived with her at the Rawson St, Lidcombe address. The applicant stated that when she and the sponsor moved to the Rawson St, Lidcombe address her flatmate was, and still is, Ms Lieu Tran. Ms Tran worked with the applicant at the Heng Chong grocery store and could provide information and evidence that the applicant and the sponsor had resided at the Rawson St, Lidcombe address. The Tribunal informed the applicant that Ms Tran would be a good witness to establish that she had resided with the sponsor at the Rawson St, Lidcombe address and requested a statement from Ms Tran. The applicant did not provide the Tribunal with a statement from Ms Tran or a statement as to why Ms Tran could not provide a statement. Further, neither the statutory declarations of Ms Nhan and Ms Vu provided to the Tribunal refer to where the applicant and the sponsor had been living.
The only evidence indicating that the sponsor resided with the applicant at the Lidcombe address are photos of three address labels on parcels addressed to the sponsor. The Tribunal gives this evidence some weight, but this evidence does not overcome the information and evidence referred to above which indicates that the sponsor remained living at the Fairfield West address when the sponsor moved to the Lidcombe address. Further, there is no supporting evidence that the applicant continued to live a few days a week at the Fairfield West address after she moved to the Lidcombe address. In addition, there is no evidence that the applicant and the sponsor had joint responsibility for care and support of children as the applicant stated that when the sponsor’s daughter was at the Fairfield West address, she was not there. The Tribunal has only the applicant’s statements as to the sharing of housework at the Lidcombe property which even if the Tribunal gave this evidence any weight it would not overcome the Tribunal’s concerns set out above.
On all of the above, notwithstanding some evidence that the parties lived together leading up to the claimed argument that led to the sponsor moving out in June 2022, the Tribunal is not satisfied that the applicant and the sponsor lived together at the Rawson St address. Further, the Tribunal is not satisfied, that the evidence of the nature of the household of the applicant and sponsor is indicative they were a couple in a genuine spousal relationship at the time of the sponsor’s death.

Social Aspects

The applicant stated in the visa application that they present themselves as husband and wife in public and always go out together as a couple. Their family and friends know they are married and living together. The sponsor in the sponsorship form stated that they always go together as a couple. He met the applicant through a mutual friend and, therefore, their friends know they are married and live together as do their families.
Provided to the Department were statutory declarations from Mr Hoang Linh Do and Mr Ty Kou dated 18 March 2018. Mr Do stated that he has known the applicant for a very long time as their families know each other. The couple met through him, and they all see each other regularly, about once a week. He further stated that he believes the marriage is genuine and continuing and they are always together as a couple and he has visited their home. Mr Kou stated that he has been a friend of the sponsor for five years and met the applicant around nine months ago. They see each other around once a week. He believes the marriage is genuine and continuing. He knows the sponsor and knows that he cares for the applicant very much. The sponsor speaks about his love for the applicant. They are a lovely couple together.
A number of photos were provided to the Department, but they were for a limited number of social occasions. Two were of the proposal, four of the wedding ceremony, seven of signing the marriage certificate and holding the marriage certificate and one after the ceremony. There are two photos of a dinner at home and two photos of a dinner at a restaurant, both social occasions were with friends.
Evidence provided to the Tribunal
The Tribunal was also provided with the photos referred to above and five photos from two other social occasion.
The Tribunal was provided with two statutory declarations from friends of the applicant. Mr Tu Nhan’s declaration is dated 19 November 2023, he has known the applicant 6 years and the sponsor 5 years. Ms Ngoc Vu declaration is dated 8 November 2023, she has known the applicant 7 years and the sponsor 5 years. Ms Vu lives in Tasmania.
Both Ms Nhan and Ms Vu state that they were introduced to the sponsor although Ms Vu does not say when she was introduced and Ms Nhan states that it was after she met the applicant in 2017. Ms Vu’s declaration is primarily about the applicant and speaks general about their relationship and does not include when she met the parties together and what she observed. She does refer to the applicant having to support the sponsor when he lost his job but everything else Ms Vu states about the relationship of the applicant and the sponsor is very general. Ms Nhan declaration states that the parties when they were together got looks from strangers due to their age difference but does not state if she was told that or observed it. The rest of the declaration is very general and does not include when she met the parties together and what she observed.
The Tribunal accepts that Ms Vu and Ms Nhan have met the sponsor and is aware that he and the applicant were married but as both declarations are mainly general in nature and do not refer to when they met the parties together and what they observed, the Tribunal will only give them limited weight as supporting evidence.
Evidence provided at the first hearing
As set out above, the applicant stated that she had been notified of the sponsor’s death by a mutual friend, his best friend Mr Hoang Do who has been living in Melbourne since the pandemic. The applicant was told about a month later, in beginning of September 2022 when Mr Hoang Do called her.
Evidence provided to the Tribunal
In her response the applicant stated as follows:
·The sponsor’s first spouse organised the funeral and she had never met or had any contact with the former spouse. She is baffled why the police did not contact her and contacted the former spouse instead.
At the first hearing the applicant stated that the police informed the sponsor’s former spouse of his death. The Tribunal notes that the address on the sponsor’s drivers licence and death certificate is the Fairfield West address. The applicant at the third hearing stated that she and the sponsor had lived there before they moved to the Rawson St address and after that move they still moved between both addresses. In these circumstances the Tribunal would have expected the police to have been able to find and notify the applicant.
·The sponsor was secretive about his past marriage and never talked about it and his former spouse.
·As they had not met and the former spouse is not in contact or a friend with any of the sponsor’s friends, there is no way of knowing if he had remarried. Further, Mr Hoang Do and Mr Hung Do both stated that they do not have direct contact or have met the sponsor’s former spouse. They were invited to the funeral by a distant mutual connection of the former spouse. Most of the sponsor’s friends that the applicant knew were those from after his divorce.
The applicant makes the above statements without any supporting information or evidence. The Tribunal notes that the sponsor was married to his former spouse for 12 years and on the applicant’s own evidence had responsibility for their daughter. It is unlikely that in relationship of 12 years that there would not be mutual friendships or at least both parties would know some of each other’s friends.
Third Hearing
At the third hearing the Tribunal explained to the applicant that in relation to the social aspect of their spousal relationship the circumstances, the Tribunal must have regard to up until the death of the sponsor are set out in the definition of spouse and include: 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.
Third Hearing – applicant’s evidence
At the hearing the Tribunal referred to the statutory declaration supporting the genuineness of the relationship. The Tribunal referred to Mr Do stating he has known the applicant for 10 years and the sponsor for 3 years. Mr Do stated that he had known her family for a long time but not her, but he knew of her. The Tribunal referred to Mr Do stating that he had known the applicant for a very long time. The Tribunal asked if the statement was meant to mislead the Department and the applicant stated that perhaps the wording is unclear. The Tribunal referred to her statement stating that she and Mr Do had known each other for a very long time. The applicant stated that she knows Mr Do but not in the sense of a friend that regularly sees each other. The applicant stated that they know each other but not in the sense of friends.

The applicant confirmed that Mr Hoang Linh Do went to the funeral and he was the friend who called her. The other friend who went to the funeral was Mr Ngoc Hung Do who lives in Melbourne.
Conclusion
The Tribunal accepts that there is evidence that the sponsor’s and applicant’s spousal relationship is recognised by mutual friends. However, for the reasons given above the Tribunal has only given the declarations of Ms Vu and Mr Nhan limited weight as supporting evidence. The Tribunal accepts that the sponsor’s friends may have changed after his divorce. However, Mr Hoang Linh Do stated in his statutory declaration that he was a long term friend of the applicant, and he knew that the applicant and the sponsor were married yet he and other friends made no or limited effort to inform her of the funeral. This is an indication that their spousal relationship was not or was no longer recognised by mutual friends or at least the sponsor’s friends at the time of his death.
Further, the Tribunal was provided with very limited photographic evidence of the applicant and sponsor attending social events with friends considering that they had been married for over four years. The Tribunal was provided with the photos that were also provided to the Department and five photos from two other social occasion.
On all of the above, notwithstanding some evidence that the applicant’s friends that they were in a spousal relationship at the time of the sponsor’s death, the Tribunal is not satisfied the social aspects of the applicant and sponsors relationship are indicative of a couple in a genuine spousal relationship of nearly 5 years particular at the time of the sponsor’s death.

Nature of person’s commitment to each other

The applicant stated in the visa application that the sponsor is very supportive, caring and loving person to live with. He listens to her, and they talk about their future and having children. They plan to visit their families in Vietnam. The sponsor is a hard working person who cares for her and makes sure she is happy.
The sponsor stated in the sponsorship form that the applicant is gentle and loving. She cooks and cleans the house and takes care of him. They talk about the future.
Third Hearing
At the third hearing the Tribunal explained to the applicant that in relation to the nature of the parties’ commitment to each other aspect of their spousal relationship, the circumstances the Tribunal must have regard to up until the death of the sponsor are set out in the definition of spouse and include: 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.
Third Hearing – applicant’s evidence
At the hearing the Tribunal asked how they provided emotional support and companionship to each other and the applicant said he supported her a lot. He was older than her and he gave her protection. She was younger so she would let him know something interesting and new. The relationship was dynamic. Their plans for the future were to buy a house and later when they were financial stable, they talked about having a child.
The Tribunal asked what led to the argument that caused their separation and the applicant stated that it was surrounding support. In the beginning he gave her more support and then he gave less support and gave something separate for his daughter. He gave more money and support to his daughter rather than her and she was not satisfied, and the frustration accumulated to the point of a big argument. The Tribunal referred to the arguing being so bad they were separated for a month and the applicant stated it was big argument and it was time for private space for each person. The Tribunal refer to it being a long time to be separated after an argument and the applicant stated that they needed private space and as she was working, she did not feel the length of the time.
Third Hearing
At the third hearing the Tribunal asked the applicant if there were any other circumstances of her relationship with the sponsor that they would like the Tribunal to consider.
Third Hearing – applicant’s evidence
The applicant stated that the sponsor was much older than her and some people may comment on the age gap, but it was a genuine relationship. The Tribunal asked if she had anything to add, and the applicant stated she did not. The Tribunal asked if she had anything to add in relation to the aspects of the relationship discussed during the hearing and the applicant stated that at the moment, she thinks there is no more she can tell the Tribunal, but she may wish to put something in writing.
The Tribunal stated that there concerns about the social recognition and that she was not notified by the police of the death of the sponsor. The applicant stated that she does not know she did not miss a call from the police or any call from anyone telling her about the death. There is a lack of evidence that she lived at the Fairfield West address particularly as she stated that she was living there on and off since 2019. There is little supporting evidence that they pooled their financial resource and shared the day to day household expenses. The Tribunal referred to the applicant being the sponsor’s spouse for a long time and there being no reason why the police would not contact her especially as his former spouse was a former spouse for a long time. The Tribunal allowed the applicant additional time until 10 April 2024 to provide any additional information. No further evidence or information was provided to the Tribunal.

Conclusion

The applicant’s evidence at the first hearing was that after a fight in July 2022 she had told the sponsor to live elsewhere. In her response she stated that they had a lot of disagreement and trouble prior to the fight that led to their separation. She also stated that there was a lot of verbal abuse and which she cannot forget and that has left permanent damage on her mental health.
The applicant and the sponsor had been in a relationship for over 5 and had been married for nearly 4 5 years at the time of the sponsor’s death. However, on all the evidence, the Tribunal is not satisfied that despite the length of their relationship and marriage, that during the time leading to the sponsor’s death, the applicant and sponsor provided a degree of companionship and emotional support that would be expected of a couple in a spousal relationship. Nor is the Tribunal satisfied that they saw the relationship as long term.
Accordingly, the Tribunal is not satisfied that the evidence of the applicant and sponsors commitment to each other is indicative of a couple in a genuine spousal relationship.

Overall Conclusion

Having considered the reg 1.15A(3) matters the Tribunal is not satisfied that the applicant and the sponsor, at the time of the sponsor’s death: had a mutual commitment to a shared life as a married couple to the exclusion of all others: that the relationship was genuine and continuing: and that they lived together, or not live separately and apart on a permanent basis.
On the basis of the above the Tribunal is not satisfied that the requirements of s 5F(2) are met at the time the of the applicant’s death on 21 July 2022 and at the time of this decision.
Therefore, the applicant does not meet cl 820.221(1) as the applicant does not meet cl.820.221(2) and there is no evidence before the Tribunal to indicate that the applicant meets any of the alternative criteria in 820.221(3), specifically relating to family violence and child exceptions.
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.

Namoi Dougall
Member

ATTACHMENT - Extract from Migration Regulations 1994

1.15A Spouse

For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.
If the Minister is considering an application for:
(a)a Partner (Migrant) (Class BC) visa; or
(b)a Partner (Provisional) (Class UF) visa; or
(c)a Partner (Residence) (Class BS) visa; or
(d)a Partner (Temporary) (Class UK) visa;

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

The matters for subregulation (2) are:
(a)the financial aspects of the relationship, including:
(i)       any joint ownership of real estate or other major assets; and
(ii)      any joint liabilities; and
(iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)    whether one person in the relationship owes any legal obligation in respect of the other; and
(v)     the basis of any sharing of day to day household expenses; and
(b)the nature of the household, including:
(i)       any joint responsibility for the care and support of children; and
(ii)      the living arrangements of the persons; and
(iii)     any sharing of the responsibility for housework; and
(c)the social aspects of the relationship, including:
(i)       whether the persons represent themselves to other people as being married to each other; and
(ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)     any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including:
(i)       the duration of the relationship; and
(ii)      the length of time during which the persons have lived together; and
(iii)     the degree of companionship and emotional support that the persons draw from each other; and
(iv)    whether the persons see the relationship as a long term one.
If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

[2024] AATA 1068

23 April 2024

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