Nguyen (Migration)

[2020] AATA 531

Nguyen (Migration) [2020] AATA 531 (23 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ba Thang Nguyen

VISA APPLICANT:  Mr Quang Hung Nguyen

CASE NUMBER:  1915226

DIBP REFERENCE(S):  

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:        23 January 2020 at 2:19 pm (VIC time)

DATE OF WRITTEN RECORD:               20 February 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 20 February 2020 at 9:31pm

CATCHWORDS
MIGRATION – Skilled Regional Sponsored (Provisional) (Class SP) visa – Subclass 489 (Skilled – Regional (Provisional)) – false or misleading information in a material particular – claimed marital relationship – place of residence – claimed adoptive relationship – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 489.211, 489.311; Schedule 4, PIC 4020

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 29 May 2019 to refuse to grant the visa applicant a Skilled Regional Sponsored (Provisional) Subclass 489 visa under the Migration Act 1958 (the Act).

2. At the hearing on 23 January 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. Mr Nguyen this review is of a decision to refuse an application that you made for as the sponsor for a 489 Skilled Regional Sponsored visa in which your brother‑in‑law is the primary applicant, and the secondary applicants are your sister - his wife - and Tho Nguyen their adopted son. 

4. The application was made on 13 July 2017 and a decision was made to refuse the application on 29 May 2019.  You appealed that decision to be reviewed by this Tribunal and with your application you included a copy of the primary decision which you claimed to have read and understood and we read through it today in some detail.

5. The delegate made the decision to refuse the application on the basis that she was not satisfied that your brother-in-law, the primary applicant, met 489.211 which is an element of the regulations that deal with what are known as the primary interest criteria, we abbreviate to P-I-C, or PIC.  One of those is PIC 4020 which states that there is no evidence before the Minister, or in this case the Tribunal, the applicant has provided a bogus document or information that is false or misleading in a material particular in relation to the visa application.

6. The delegate was concerned there were a number of issues about the marital relationship and whether or not your brother in law was genuinely a member of the family unit and those questions also arose about the adopted child, the son. 

7. We read from that primary decision at length and I read excerpts from it now. 

8. "There is evidence before the Minister that the applicant has provided or caused to be provided a bogus document or false and misleading information in relation to this visa application.  The applicant made a claim of being in a marital relationship with Thi Than Nguyen, referred to as Ms Nguyen and being the adoptive father of Tho Doc Nguyen and Ms Tho.  In order to verify the applicant’s claims on 23 October an officer of the department contacted the applicant and members of his wife’s family.  Information gathered during the interview raised concerns regarding the applicant’s claim to be in a marital relationship and raised concerns regarding the nature of the adoption of Tho.

9. During the interview the applicant claimed to be living with his wife and adoptive son at his wife’s family residence at 5, Street 38, Group 3, Quarter 2, Tan Phong Ward District 7, Ho Chi Minh City.  It was claimed the residence has six bedrooms however when officers spoke to the applicant’s sister-in-law she stated there were four bedrooms.

10. During the interview he claimed he resided with his wife, Thien Anh Nam, Chi Ona, Chi Thu and his adoptive son.  However, when officers spoke with his sister-in-law.  She stated the applicant, his adoptive son and Ms Nguyen did not reside at that residence and also stated that Thien Anh Nam did not reside at this address as she resided with her biological parents. 

11. The applicant stated that Ms Nguyen takes Thien Anh Nam to kindergarten however her sister stated that the child’s biological parents take her to school.  The above information raises concerns the applicant lacked knowledge regarding the household and raised concerns that he was not resident of the house as per his claims.

12. At the interview he referred to his wife as ‘Chi Na’, The Departmental officer states that “Chi” is the term used to address an older woman.  Whilst it is acknowledge that the applicant’s wife is older than him, it would be expected he would refer to his spouse as “bà xã” or vợ tôi” regardless of the age difference.  The applicant also referred to his sisters-in-law as “Chi” and his brother‑in‑law as “Anh”. It would not be expected that he would use such  titles when speaking with his sister and brothers-in-laws.

13. As the applicant is married to Ms Nguyen it would be expected that he would be on familiar terms with her and her siblings and his use of these titles raises concerns the applicant may not be on familiar terms with them.  It is further noted that during the interview the applicant’s sister-in-law and brother-in-law stated the applicant’s wife was not married.  This raised concerns that the applicant, Ms Nguyen may not be in a marital relationship as per their claims.

14. The above inconsistencies raised concerns about the authenticity of the applicant’s relationship claims which had been made in order for Ms Nguyen to meet the member of the family unit and therefore be considered as a material particular of Regulation 409.311.

15. During interview concerns were also identified in relation to the adoption of Tho.  The applicant claims he adopted Tho in 2017.  Tho is the applicant’s nephew.  The applicant has not had children however his brother had two sons and so he adopted one of them. 

16. The applicant stated Pho had resided and been brought up by his biological parents including after the adoption until he graduated from SHS education.  Pho had never resided with the applicant, only staying with him during the summer break.  The applicant provided a current address that was issued 15 August 2017 and a household register issued 30 September 2017 showing Tho residing at the same address as the applicant, however it appears these documents were issued for the purpose of migration and do not reflect the true residence of Tho.

17. The involvement of his biological parents in his SHS education raised further concerns that the child/parent relationship between Pho and his biological parents is significantly closer than that of his relationship with the applicant.  The inconsistencies detailed above raise concerns about the authenticity of the applicant’s claims which it is believed he has made in order to meet the regulations as a member of the family unit. It is therefore considered to be a material particularly in regards to regulation 489. 315.

18. On 12 February 2019 the applicant was provided with 28 days to comment on the suspected noncompliant information and a number of questions were raised and in response a number of documents were provided. 

19. In response to the invitation to comment, Ms Nguyen and the migration agent stated there had been conflict between Ms Nguyen and her sister.  She believes her sister provided conflicting information to the department in order to sabotage her visa application.  

20. The applicant also provided evidence that he, Mr Nguyen, Ms Nguyen and her sister travelled to Taiwan in 2017, demonstrating that her sister was aware of their relationship.  I acknowledge that the applicant and Ms Nguyen travelled with Ms Nguyen’s sister to Taiwan and apply some weight to this.

21. I also apply some weight to Ms Nguyen’s claims of conflict between her and her sister.  However, I apply more weight to the fact that this information does not demonstrate the applicant and Ms Nguyen were residing together as a married couple as per their claims and the Tribunal notes that no further evidence has been provided in support of this conflict which supposedly led her sister to be looking to sabotage the application.

22. During the interview the applicant claimed he resided at 5 Street 38, Group 3, Quarter 2 Tan Phong Ward District 7, Ho Chi Minh City with Ms Nguyen, their son, Tho, Ms Nguyen’s niece Thien Anh Nam and Ms Nguyen’s sisters. 

23. One of Ms Nguyen’s sisters stated the applicant, Ms Nguyen Thi Than did not reside at the address and it is further supported by the applicant’s original claims that Tho did not reside with him but only that he visited for summer holidays.

24. It is claimed the applicant and Ms Nguyen had a joint bank account opened in June 2017, I apply some weight to this. 

25. There was considerable discussion about the fact that Tho does not have a telephone and therefore that no-one had his phone number.  Tho states he began living with his adoptive parents at the end of July 2018 and moved to a dormitory at the Vietnamese General University on 17 September when he commenced study.  He was adopted on 15 May 2017, 12 months prior to him residing with his adoptive parents.

26. He claims he is supported financially and mentally by his adoptive parents and would visit his adopted parents every two weeks.  However during interview the applicant stated that his adopted son had resided and been brought up by his biological parents including after the adoption until he graduated from SHS education.  The applicant stated his son had never resided with him, only staying with him during the summer break.

27. During interview with Ms Nguyen’s sister, she claimed that Tho did not reside at the address.  Statements made by Ms Nguyen also contradict the applicant’s initial claims at interview that Tho has never resided with him and had only visited during the summer break.  As such, little weight is placed on Ms Nguyen’s statements, more weight is placed upon the spontaneous information obtained during the interview.

28. Mrs Nguyen has been in Australia since November 2018 and you have told the Tribunal today that she remains here in Australia.

29. MR NGUYEN:  Can I say something?

30. Member: I beg your pardon?

31. MR NGUYEN:  Can I say something?

32. Member: No.

33. When I look at interviews with the primary applicant, Huang Nguyen, in response to questions as to where he currently lives, he responded 5 Street 38, Group 3 Quarter 2, Tan Phong Ward District 7 Ho Chi Minh city, the address that has now come up a number of times.

34. Who do you live with?

35. MR NGUYEN:  Me?

36. No.  That is the question that was asked of the primary applicant. He responded “My wife, Mr Nam, Thien and Chi Van, myself and my adopted child,” so six people in total living at the house.  Also Chi Thui. 

37. Kim Thua Nguyen, who is not the sister who was having the conflict, stated that Ms Na, the primary applicant and the child do not live at this address.  He was then asked “Who is Chi Thui?” to which he responded “My wife’s younger sister but she didn’t stay with us regularly as she has her own house at another address.” 

38. The interview went on and he was asked.  “Can you tell me more about the people who reside at your claimed residence?”  And you have explained that “This was Nam stated that Phung Nam Li does not live with her at the above address and would not because you communicate or talked regularly with people living at the address? You responded, “Yes.”

39. “What does Nam do for a living?, your response was “I don’t know because it’s private.”  “Does Nam have his own child?---I don’t know”.   “You said that Thien Ahn lived in the same house?---Yes, my wife picks up and drops off Thian Ahn from school.” Thien Ahn’s adoptive mother confirmed that Thien Ahn has been living with her biological parents in a different district.

40. The primary decision goes on to say while the primary applicant states that his wife’s niece has resided at the same house with him and his wife who picks up and drops off the child from kindergarten, her adoptive mother confirms that Thien Ahn has not resided at that address but lives at another district and that another aunty, Thi, has picked up and dropped off the child from school.   This leads concern that the primary applicant has not resided with his wife and has not been in a relationship with his wife.

41. This suspicion is strengthened by the fact that the primary applicant calls his wife “Chi” at the beginning of the interview, a Vietnamese title for an unrelated woman older than you.  The title is never used for a wife.  He also used it for his wife’s younger sisters.

42. Regarding the adoption, the primary applicant states that his adopted child, Tho has resided and been brought up by his biological parents after the adoption until he graduated from his SHS education when the turned approximately 18 years of age and he lived with his parents in Northern Vietnam. 

43. He is currently residing in the dormitory of Viet Duc International University and so the registration of residence appears to be for migration purposes. The Tribunal looks at this adoption and says, “This is unusual, we have got a boy who comes from the north of Vietnam, travels some 1700 kilometres south and spends some time with an uncle who certainly provides him with some financial support but he doesn’t really live with him. He stayed with him for a short period of time but he goes to uni and lives in a college at university” and that is, what I would have thought is not an unusual family supporting relationship but I do not believe that it is a relationship that would be correctly described as an adoption.

44. In the tourist visa application lodged in December 2016, the primary applicant Than Anh Nguyen listed his marital status as married.  This is despite the fact that he divorced in June 2016 and did not marry his current wife, the secondary applicant, on the application until July 2017.  That certainly raises concerns and questions about why he would have provided that answer.

45. While the Tribunal accepts that the primary applicant and Than Ahn Nguyen have a bank account, I am not convinced that they live together. 

46. There is very little evidence of social relationships other than their own statements and a statement that was made by someone from Australia who claims to attest to the relationship and the fact is that the secondary applicant has now been in Australia for well over a year.

47. Thi Kim Thua Nguyen stated in interview that the family planned for the whole family, being herself and her 10 siblings, to migrate to Australia and the situation is that you, Mr Nguyen, have already attempted to sponsor a couple of your siblings to Australia and in both instances I think there have been - certainly in one - the adoption of a niece or nephew shortly before the application and while that evidence itself is not damning, it is certainly a pattern of behaviour that raises concerns and those concerns are heightened by an interview that was provided by one of your sisters, I think Kim Thua Nguyen - or it may have been another sister - who, when asked about whether she was married said she was not married but had signed papers and while she did not live with the fellow she claimed to marry, she said she would when she came to Australia and had taken the action she had taken on your advice as a way that she might successfully migrate to Australia.

48. MR NGUYEN:  So I didn’t see the point in the - - -

49. I beg your pardon?

50. MR NGUYEN:  I didn’t see that problem as in addition record from the department officer.

51. You think what?

52. MR NGUYEN:  I didn’t see Kim Phua said that I planned to sponsor ten members od the family coming to Australia.

53. She may not have said that but I have substantial - there have been a substantial volume of further documents provided and that I have sought out ‑ ‑ ‑

54. MR NGUYEN:  Maybe if the deputation is wrong, my sister never said like that.  I don’t know - I don’t know - that is said, it is wrong.

55. Well, the situation is that I am not convinced that the relationship between your brother Huang Nguyen and Tho Nguyen, his nephew is that of an adopted father and son and I am not satisfied that the evidence presented demonstrates that your brother is in a spousal relationship with Than Anh Nguyen and  therefore I find that in claiming those relationships in this application I believe he has provided information that is false or misleading in a material particular. 

56. I therefore find that he is in breach of  PIC 4020 and therefore that he does not satisfy Clause 489.311 and I therefore find that he is not eligible for the grant of a 489 Skilled Regional Sponsored Visa and it is  therefore the decision of this Tribunal to affirm the decision under review.

    DECISION

57. The Tribunal affirms the decision under review.

    Tim Connellan
    Member