Nguyen (Migration)

[2019] AATA 3706

Nguyen (Migration) [2019] AATA 3706 (7 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Thi Kim Hanh Nguyen

VISA APPLICANTS:  Mr Van Phang Tran
Mr Thanh Hau TRAN

CASE NUMBER:  1821253

DIBP REFERENCE(S):  BCC2017/2379494

MEMBER:Steven Griffiths

DATE:7 June 2019

PLACE OF DECISION:  Adelaide

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

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) – Subclass 309 (Spouse (Provisional) – genuine spousal relationship – marriage certificate – photographs – insufficient evidence provided – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), Schedule 2 cl 309.211, r 1.15A(3)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 1 June 2018 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant, Mr. Van Phang Tran, applied for the visa on 30 June 2017 on the basis of his relationship with the sponsor, Ms. Thi Kim Hanh Nguyen. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. The other member of the family unit, Master Thanh Hau Tran, as an applicant for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because the delegate was not satisfied that the visa applicant was the spouse, as defined in s.5F of the Act, of the sponsor. This is a review of the delegates’ decision.

4. The sponsor appeared before the Tribunal on 27 May 2019 to give evidence and respond to questions. She provided the Tribunal with a copy of the delegates’ decision record. The Tribunal also received oral evidence from the visa applicant by telephone from Vietnam. This hearing was not completed due to the interpreter being unable to continue beyond the identified hearing time and was adjourned to 7^th June 2019, with the sponsor in attendance and the visa applicant providing oral evidence by telephone from Vietnam.  Both hearings were conducted with the assistance of an interpreter.

5. The sponsor was not represented by a migration agent.   

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal has taken into consideration all the evidence in the Department of Immigration and Border Protection file and the Tribunal file, including additional information provided by the sponsor and the evidence from the Tribunal.

   ISSUE

8. The issue is whether the visa applicant is the spouse, as defined in s.5F of the Act, of the sponsor.

   BACKGROUND ON THE EVIDENCE

9. In 1976 Ms. Nguyen was born in Kien Gang, Vietnam. Her parents are deceased and she has 7 sisters and 1 brother, with 2 siblings living in the United States of America, 1 in Australia and the others in Vietnam. She has been previously married twice, having 4 children (born 95, 97, 99, and 02) with her 1^st husband (married 15/10/94 to 19/12/03) and 1 child (born 11/13) with the 2^nd husband (2013 to 06/14). 

10. In 1973 Mr. Tran was born in Tra Vinh Province, Vietnam. His father is deceased and his mother lives in Vietnam, as do his 7 siblings. He has been married once before (1/5/03 to 28/1/16) and has 2 children of which a son (born 4/9/04) is part of the visa application and daughter (born 22/5/07) is staying in Vietnam. 

    INFORMATION TO THE TRIBUNAL

11. Since the delegate made a decision, the sponsor has provided further information to the Tribunal including:-

    Declaration of Marriage Relationship by the sponsor

    Declaration of Marriage Relationship by the visa applicant

    Viber call register for the period 30/617 to 16/5/19

    Copies of 92 photos

    Is the visa applicant the spouse of an eligible citizen?

12. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. The Tribunal has regard to a copy of an apparently genuine Australian passport which highlights that the sponsor is an Australian citizen.  

    Whether the parties are in a spouse or de facto relationship

13. ‘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).

14. In forming an opinion about these matters, the Tribunal must have regard to all of the circumstances of the relationship. This includes evidence on the areas detailed below as set out in r.1.15A(3), which is extracted in the attachment to this decision, being :-

    (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.

    are effectively questions which must be answered: He v MIBP[2017] FCAFC 206.

    Are the parties validly married?

15. At the time the visa application was made the visa applicant provided evidence of being married to the sponsor. The parties have provided a translated Marriage Certificate from the Socialist Republic of Vietnam as evidence of their marriage on 26 April 2017 in Tra Vinh Province, Vietnam.   

16. The Tribunal has regard to the document and finds that the parties were married to each other at the time of the visa application and of the decision, with the marriage valid for the purposes of the Act as required by s.5F(2)(a).

    CLAIMS AND FINDINGS

    Financial aspects of the relationship

17. The Tribunal determines, from the evidence provided, that the parties at the time of the delegate decision did not have any joint ownership of assets or joint liabilities or any legal obligation to each other.

18. The visa applicant has ownership of a house in Vietnam and 2 buses, being an operator / driver for most of his working life and has also worked at a prawn farm and in the cultivation of bananas.

19. The sponsor has devoted her adult life to care of her 5 children and has not held a full time job, but has spent some time working at the market garden farm owned by her sister in South Australia.

20. The Tribunal was advised by both parties independently, which it accepts as pooling of financial resources, that the visa applicant paid for the travel costs of the sponsor and her youngest child to travel to Vietnam on 12 June 2018. The Tribunal notes that this trip was after the decision of the delegate to the Minister.

21. The Tribunal was advised, by the visa applicant only, of a payment to the sponsor for her and her eldest and youngest children to travel to Vietnam in 2017 for the wedding of the parties, and the payment of $ 1000 for the children of the sponsor in 2017 and 2018, with these payments made by cash to the sponsor. With no corroborating comment from the sponsor, and no evidence of the payments able to be reviewed, the Tribunal does not accept this as evidence of pooling of financial resources.

22. The parties provided oral evidence independently, which the Tribunal is unable to confirm, of the value of the home and buses that the visa applicant would sell if he was permitted to live in Australia.

23. The Tribunal determines that at the time of the visa application the parties have not provided evidence of pooled financial resources in relation to major financial commitments or the sharing of day-to-day household expenses.

    Nature of the household

24. Since the marriage in April 2017 in Vietnam, the sponsor has travelled to Vietnam for 18 days in June 2018. The Tribunal accepts that for the 2017 and 2018 time in Vietnam the sponsor and children stayed with the visa applicant.

25. The parties were able to confirm independently, which the Tribunal accepts, of the details of the sponsors 5 children and the visa applicants 2 children.

26. The sponsor gave oral evidence that during her time in Vietnam she and her children did not like the food prepared by the visa applicants’ mother, so she prepared food for them and the visa applicant. The evidence of the visa applicant did not support the comments about his mother made by the sponsor and the Tribunal notes that none of the parties referred to the son of the visa applicant.

27. The evidence of the sponsor was that she did the cooking and cleaning and went out for coffee with the visa applicant, while the visa applicant stated that he assisted with the cleaning and kitchen work and took the sponsor to the market. With the evidence being inconsistent, the Tribunal does not accept that the parties shared the responsibility for housework.   

28. The Tribunal viewed photos provided of casual outings of the parties in Vietnam, and noted the inclusion of the youngest daughter of the sponsor in some of them, but was provided with no evidence from the parties of shared responsibilities for the care of the child during the time in Vietnam.

29. The visa applicant has custody of his son from his first marriage. The Tribunal notes that in the evidence provided before the first hearing that none of the photos included this child. The Tribunal was subsequently provided with prior to the second hearing a photo taken on the day of the parties wedding with the son included. The Tribunal finds that no evidence was provided by the parties of shared responsibility of the care of the child when the sponsor was in Vietnam.

30. The visa applicant confirmed during oral evidence that the sponsor had not met his daughter, who lives with his ex-wife, that the daughter did not attend the wedding and that his contact with her is by telephone.

    Social aspects of the relationship

31. The Tribunal viewed photo evidence of the parties undertaking activities together in Vietnam, noting that none included people other than family members.

32. Both parties gave evidence at the first Tribunal hearing that they have only a few friends and have not spoken to or met the friends of the other. The sponsor gave evidence that she does not know the names of the friends of the visa applicant. The sponsor has 2 friends, stating that her time is spent with her children, with the visa applicant confirming the full name of one and the first name of the other friends of the sponsor.

33. At the second Tribunal hearing, the visa applicant gave oral evidence that when he and the sponsor went out in Vietnam, he telephone his friends when he arrived at a restaurant to determine if they were available to meet his wife, but that no prior arrangements were made with any friends to introduce his wife to them. The Tribunal determines that no evidence was provided of the planning for social activities with other parties and that when meeting friends it was coincidental.

34. The sponsor gave evidence that due to her previous broken relationships, she had told only one friend about the marriage as she did not want to inform too many about it. The written evidence of one friend of the sponsor on the relationship was noted. No friend of the sponsor travelled to Vietnam for the wedding in 2017.

35. The Tribunal determines that the sponsor does represent herself to all other people as being married to the visa applicant.

36. The Tribunal was advised by both parties that the friends of the sponsor attended the wedding and notes the oral evidence of the sponsor that she did not meet any of them. The Tribunal determines that the parties do not present themselves to all people as being married to each other.

    Commitment to each other

37. The parties initially met with the sponsor hiring the visa applicant as a driver during visits to Vietnam, with the relationship developing by telephone and electronic contact after February 2016. From this contact, the visa applicant proposed in February 2017. The parties’ first meeting while in a relationship was in April 2017 when the sponsor travelled to Vietnam to be married. Since the marriage, the sponsor has travelled to Vietnam once and the parties have spent 30 days together.

38. Viber records provided to the Tribunal, which it accepts, for the period July 2017 to May 2019 indicate that contact was made on average of every 3.16 days. In response to questions at the hearing, both parties indicated that telephone contact was also made, but no evidence has been provided. The Tribunal can only accept the Viber call records as evidence of contact.

39. The Tribunal accepts that the parties have provided photo evidence of the wedding and undertaking activities during the time spent in Vietnam.

40. The parties confirmed independently, which the Tribunal accepts, of approximately 100 people being at the wedding, with 20 from the family of the sponsor and the remainder family and friends of the visa applicant and community members.

41. The parties were able to confirm independently, which the Tribunal accepts, that they had discussed their futures together in Australia and had plans for operating a business.

42. The parties confirmed that they are committed to each other and see the relationship as being long term, talk regularly via Viber and support each other through the times of separation and wish to live together.

43. The Tribunal does not accept, given the low level of contact per week, that the parties provide each other with emotional support. The parties claim to be in contact often, but they did not provide detailed knowledge of the activities of the other and examples of emotional support.

    Other circumstances of the relationship

44. The daughter of the visa applicant lives with his ex-wife and spends little time with him, primarily being contacted by telephone. The visa applicant stated that one of the key reasons he divorced his ex-wife because she was not caring for the children to his satisfaction but the only way she would agree to the divorce was for his daughter to live with her. Little reference was made by the parties during the hearing of the daughter being a part of the family unit.

45. The Tribunal considered all aspects of the parties’ relationship including the financial and social aspects, the nature of the household and the party’s commitment to each other. The Tribunal accepts that the parties are married, have spent 30 days together in Vietnam in the two years since being married and are not apart on a permanent basis and have communicated with each other.

46. On the basis of the findings by the Tribunal as outlined through this review process, the Tribunal does not accept that the parties were in a genuine spouse relationship at the time of the visa application.

47. On the basis of the above the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time of the visa application.

48. There is no evidence that the visa applicant meets any of the alternative criteria for the grant of the visa.

49. Therefore the visa applicant does not meet cl.309.221 of Schedule 2 of the Regulations.

50. With primary visa applicant not meeting the requirements, therefore the secondary visa applicant is not supported. 

51. For the reasons above, the visa applicant and the secondary applicant do not satisfy the criteria for the grant of the visa.

    DECISION

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

    Steven Griffiths
    Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

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

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

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

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

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

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

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

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

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

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

    (ii)      any joint liabilities; and

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

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

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

    (b)the nature of the household, including:

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

    (ii)      the living arrangements of the persons; and

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

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

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

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

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

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

    (i)       the duration of the relationship; and

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

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

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

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