Nguyen (Migration)

[2019] AATA 3782

Nguyen (Migration) [2019] AATA 3782 (31 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Van Thi Nguyen

VISA APPLICANT:  Ms Ngoc Hong Trang Dao

CASE NUMBER:  1610383

DIBP REFERENCE(S):  OSF2015/070444

MEMBER:Scott Clarey

DATE:31 January 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa.

Statement made on 31 January 2019 at 5:39pm

CATCHWORDS

MIGRATION – Prospective Marriage (Temporary) (Class TO) – Subclass 300 (Prospective Marriage) – genuine spousal relationship – credibility issues – inconsistent evidence – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 300.216, 300.221

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 to refuse to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 25 May 2015. At the time the visa application was lodged, Class TO contained only one subclass: Subclass 300 (Prospective Marriage). The criteria for a Subclass 300 visa are set out in Part 300 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on 24 June 2016 on the basis that the visa applicant did not satisfy cl.300.216 of Schedule 2 to the Regulations because the delegate was not satisfied the parties genuinely intend to live together as spouses.

4. The review applicant appeared before the Tribunal on 22 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant (Ngoc Hong Trang Dao) and two witnesses, Dao Thi Mong Cuc and Van Tuong Nguyen (who are the aunty and uncle of the visa applicant, respectively). The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   Background

7. The review applicant (Mr Nguyen) is a 47 year old Australian citizen who was born in Vietnam. He has declared three previous marriages that ended in divorce. He claimed to have two children from his first marriage. Mr Nguyen claimed to work at a strawberry farm as a labourer.

8. The visa applicant (Ms Dao) is a 29 year old Vietnamese national who currently resides in Vietnam.  She has declared no previous relationships. Ms Dao works from home selling coal.

9. The parties claim that they were introduced by Ms Dao’s uncle and aunty. Mr Nguyen claimed to be a long-time friend and work colleague of Ms Dao’s uncle in Australia. Mr Nguyen later lived with Ms Dao’s uncle and aunty although the timing of this move was the subject of significant discussion and confusion at the hearing, which will be discussed in further detail below. The parties claim to have first met in person in July 2013 when Mr Nguyen travelled to Vietnam with the uncle and aunty, although the parties claim that the relationship developed organically and was not a result of matchmaking on the part of Ms Dao’s uncle and aunty. The parties claim to have become engaged in July 2014 in Vietnam.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether Ms Dao and her sponsor Mr Nguyen genuinely intend to live together as spouses, both at the time of application and at the time of this decision.

11. In making its decision, the Tribunal has carefully considered the documentary evidence on the Department’s file, the additional documentary evidence that has been submitted to the Tribunal (including post hearing submissions made by the applicant’s representative) and the oral evidence provided by the review applicant, the sponsor and two witnesses.  

    Credibility

12. At the outset the Tribunal records that there were significant credibility issues arising from specific information provided by Mr Nguyen and Ms Dao.

13. During the hearing the Tribunal found Mr Nguyen to be frequently evasive, hesitant and vague when answering direct questions. He repeatedly responded off-point and/or did not give specific answers or information to the Tribunal.

14. The Tribunal notes that Mr Nguyen’s oral evidence at the hearing regarding his previous marriages was particularly vague, hesitant, confused and, at times, contradictory. He was unable to nominate with any certainty the key dates and details of his three prior marriages. Mr Nguyen claimed he was sponsored to Australia by his first wife in 1996. The Tribunal notes that when questioned at the hearing Mr Nguyen said he was unsure of the date of divorce but said that he thought it was in 2000. A certified copy of a divorce order submitted to the Department by Mr Nguyen states that the marriage was solemnised on 10 February 1996 and ended in divorce on 15 July 2000. Mr Nguyen claims he married his second wife in Vietnam in 2001 and he attempted to sponsor her to Australia but this visa application was ultimately refused. He said his wife became upset and ended the marriage but he could not remember when the divorce was finalised, but said it might have been in 2003 or 2004. A certified copy of a Vietnamese document submitted to the Department by Mr Nguyen states that this marriage was registered on 24 January 2002. The document was dated 20 September 2004, which appears to be the date the divorce was finalised. Mr Nguyen claims he married his third wife in 2011 and sponsored her to Australia from Vietnam. He claims that after four or five months of marriage his third wife returned to Vietnam voluntarily because she did not like living in Australia. Mr Nguyen was again unsure of the date of divorce but said that he thought it was in 2013 or 2014. A certified copy of an Australian divorce order submitted to the Department by Mr Nguyen states that this marriage was solemnised on 20 June 2011 and ended in divorce on 4 March 2015.

15. The Tribunal is mindful that Ms Dao and Mr Nguyen provided contradictory evidence on a number of aspects of their relationship, including information relating to their knowledge of each other’s personal circumstances, specific details relating to when the parties declared their feelings for one another and specific details regarding the marriage proposal. The Tribunal also notes there was a significant inconsistency relating to when and for how long Mr Nguyen lived with Ms Dao’s uncle and aunty.

16. As a result of the discrepancies in the evidence provided by the parties (which will be discussed in further detail below), the Tribunal has formed the view that Ms Dao and Mr Nguyen have not been truthful in their evidence and that they are willing to provide untruthful information to the Tribunal when they consider it helpful to their case. This has led the Tribunal to doubt the general credibility and reliability of the parties’ evidence, and to question the genuineness of their claimed relationship.

    Do the parties genuinely intend to live together?

17. Clause 300.216 requires that at the time of application ‘the parties genuinely intend to live together as spouses’. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where those two people are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is recognised as 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 considering an application for a Prospective Marriage (Temporary) (Class TO) visa, the Tribunal may have regard to the considerations set out in r.1.15A(3) of the Regulations for spousal relationships: r.1.15A(4).

18. While it is not appropriate to consider whether the parties are spouses at the time of application or time of decision, an investigation of the parties’ intentions with regard to the definition of spouse in legislation may assist in determining the parties’ aspirations. Having regard to the considerations for a spousal relationship, and the degree to which these factors may be applied to determine a future intention, the Tribunal makes the following findings:

    Financial aspects of the relationship

19. The Tribunal has considered the financial aspects of the relationship, including any joint ownership of real estate or major assets, any joint liabilities, the extent of any pooling or sharing of financial resources, whether any person in the relationship owes any legal obligation in respect of the other, and the basis of any sharing of daily household expenses and any combined future financial commitments or plans.

20. The Tribunal accepts that Mr Nguyen is a farm worker who earns approximately $700 per week. The Tribunal accepts that Ms Dao has a small business selling coal and BBQ supplies from her house which is adjacent to a market. The Tribunal has considered the evidence of the financial aspects of the relationship, including various receipts of remittances of money made by Mr Nguyen to Ms Dao. The Tribunal accepts that the Mr Nguyen has remitted money to Ms Dao on a number of occasions, usually of amounts between $100 and $400. The Tribunal accepts that the parties also submitted evidence to the Department related to the financial aspects of the relationship, including remittance and shopping receipts.

21. The Tribunal accepts that the parties do not have a joint bank account, and do not otherwise pool their financial resources in any way. There is no other evidence before the Tribunal of any joint liabilities and/or legal obligations owed by the parties in respect of each other.

22. The Tribunal accepts there is some evidence of the parties sharing financial resources. The Tribunal acknowledges there is a degree of difficulty in establishing and sharing financial resources when the parties live in separate countries. Accordingly, their physical separation means that, as at the time of this decision, they will have had limited opportunities to pool their financial resources and share their day-to-day household expenses.

23. The Tribunal places some positive weight on the financial aspects of the relationship.

    Nature of the household

24. The Tribunal has considered the nature of the household, including any joint responsibility for the care and support of children, living arrangements of the parties and the sharing of the responsibility for housework. The Tribunal acknowledges that the parties are living in different countries and have never lived together on a permanent basis.

25. The Tribunal notes that, at the time of this decision, no evidence has been provided to the Tribunal about any current sharing of the responsibility for housework. This is unsurprising given that the parties have never lived together on a permanent basis.

26. There is no evidence before the Tribunal that the couple have shared responsibility for the care and support of children. This is unsurprising as the parties do not have children together and live in separate countries.

27. The Tribunal attaches little weight to this aspect of the relationship.

    Social aspects of the relationship

28. The Tribunal considered the social aspects of the relationship, including whether the parties represent themselves to other people as being married to each other, the opinion of friends and acquaintances about the nature of the relationship, and any basis on which the parties plan and undertake social activities.

29. The Tribunal notes that it has some evidence before it of the parties undertaking joint social activities and socialising with others. The Tribunal has had regard to various statutory declarations and statements submitted in support of the application, including from Mr Nguyen De (Mr Nguyen’s uncle), Nguyen Hoan Lan (a friend of Ms Dao’s), Nguyen Bich Ngoc (a friend of Ms Dao’s), Van Tuong Nguyen (Ms Dao’s uncle), Nguyen Ngoc Thanh (a friend of Mr Nguyen’s) and a statement from Ms Dao’s parents. The Tribunal is prepared to accept that these declarants believe the relationship to be a genuine one. The Tribunal gives some weight to these statements. As noted, the Tribunal heard witness testimony at the hearing from Ms Dao Thi Mong Cuc and Mr Van Tuong Nguyen (the aunty and uncle of Ms Dao). The witnesses both generally attested to the genuineness of the relationship. The Tribunal gives their testimony some weight.

30. With respect to whether the parties plan and undertake joint social activities, the Tribunal acknowledges that the parties presented evidence to the Department, including photographs, that attests to the social aspects of their claimed relationship. The Tribunal accepts that parties held what they claimed was an engagement celebration following their claimed engagement in July 2014. The Tribunal is prepared to accept that during Mr Nguyen’s trips to Vietnam since 2014 (when the couple claim to have become engaged) the parties have planned and undertaken some social activities together and that at least on some occasions have represented themselves to others as being in a relationship.

31. The Tribunal attaches some weight to this aspect of the relationship.

    Nature of the persons’ commitment to each other

32. The Tribunal has considered the nature of the parties’ commitment to each other, including the duration of the relationship, the length of time the parties have lived together, the degree of companionship and emotional support they provide each other, and whether the parties view the relationship as a long-term one.

33. Tribunal has had regard to various letters and cards (written in Vietnamese) submitted to the Tribunal, that purport to be physical correspondence between the parties. Although most of the correspondence is untranslated from Vietnamese, the Tribunal does have at least three English translations of the letters although it is unclear which envelopes these translated letters relate to. Apart from one of the letters that is signed ‘Thi’, the Tribunal notes that the three translated letters themselves do not indicate specifically who the letters are written to or authored by. The three translated letters are between one half and one full typed page in length and discuss various matters such as the author’s feelings for the recipient and convey loving messages. The Tribunal gives these letters some weight.

34. The Tribunal has had regard to a number of printouts from a TPG broadband account, from various time periods between 2013 and 2018 that were submitted by the parties. The Tribunal notes that the printouts do not bear any name, although an address in Taylors Hill where Mr Nguyen claims to have lived for a period with Ms Dao’s aunty and uncle is listed as the ‘service address’. The printouts appear to depict unidentified phone calls made from the unnamed account. The Tribunal notes that this address was also the residence of Ms Dao’s uncle and aunty. The Tribunal also notes that Mr Nguyen by his own admission has not lived at this address for part of the most recent period covered by these printouts. The Tribunal notes that the printouts offer no information about who made the calls listed and provide no insight into the claimed relationship between Mr Nguyen and Ms Dao. The Tribunal therefore gives the broadband account printouts no weight.

35. The Tribunal has had regard to the duration of the relationship and accepts that the parties are known to each other and that they first met in 2013 during a trip to Vietnam by Mr Nguyen. The Tribunal questioned both parties at length about their familiarity with each other. The parties demonstrated some knowledge of each other’s life and personal circumstances, including regarding their respective employment and basic details about their family composition. The Tribunal notes that Mr Nguyen at times gave vague, hesitant and/or inconsistent oral evidence regarding aspects of Ms Dao’s life, including her interests and social activities. The Tribunal notes that Mr Nguyen could not name any of Ms Dao’s friends when asked and could offer only vague references to movies and music when asked about her interests outside of work. Ms Dao was similarly vague about aspects of Mr Nguyen’s social life and interests outside of work and provided inconsistent evidence on a number of aspects of their claimed relationship (discussed in further detail below). For example, she could name only one of Mr Nguyen’s friends when asked and apart from fishing could not name any of his interests or hobbies. As discussed below, Ms Dao did not know certain basic details of Mr Nguyen’s current living arrangements.

36. The Tribunal is concerned by the lack of knowledge the parties demonstrated about certain aspects of each other’s personal circumstances and specific inconsistencies in their evidence (discussed in detail below) relating to key events in their relationship. The Tribunal is not satisfied that Mr Nguyen and Ms Dao demonstrated knowledge of each other’s lives indicative of a couple who genuinely intend to live together as spouses. It follows that the Tribunal places negative weight on this aspect of the relationship.

37. The Tribunal notes that there were a number of inconsistencies in the oral evidence that call into question the parties’ credibility and reliability as witnesses. These include:

    a.Mr Nguyen told the Tribunal that he lived at an address in Sunshine North in a property he shared with his landlord Mr Tam, Mr Tam’s wife and their two children. Ms Dao told the Tribunal that Mr Nguyen was currently ‘sharing a room with his friends that all I know’. When asked if she could be more specific, Ms Dao then stated that Mr Nguyen was sharing the property with one person only, a man named ‘Mr Mui’. When invited to comment on this inconsistency, Mr Nguyen stated that Ms Dao was either ‘mixed-up or did not listen carefully enough’. He stated that Mr Mui was the brother of the landlord who had moved out of the property a long time ago.

    b.Mr Nguyen told the Tribunal that he first revealed his romantic feelings for Ms Dao in a letter and a follow-up phone call to her in the weeks leading up to his trip to Vietnam in June-July 2014. Ms Dao told the Tribunal that the couple had discussed their romantic feelings for each other on Mr Nguyen’s first trip to Vietnam in 2013 (when the parties had first met) and had even discussed marriage during this 2013 trip. When invited to comment on this inconsistency, Mr Nguyen stated that he had not discussed marriage with Ms Dao during his 2013 trip but he had told Ms Dao she was a ‘good woman’ and Ms Dao had reciprocated this sentiment. Mr Nguyen stated that he had proposed during his 2014 trip. When asked why he thought Ms Dao had a different recollection of such a significant event, Mr Nguyen stated that it is the way she feels about the event and that ‘she always thinks a bit further into the future’.

    c.Mr Nguyen told the Tribunal that he formally proposed to Ms Dao in July 2014 during his trip to Vietnam. When asked about details of the event, Mr Nguyen stated that he and Ms Dao had a meal and then went for a walk through a named tourist area where he proposed near a lake. Ms Dao told the Tribunal that Mr Nguyen proposed to her at her house after they had lunch with her grandmother. When invited to comment on this inconsistency, Mr Nguyen stated that Ms Dao’s answer was wrong and that ‘she’s completely mixed-up’.

    d.Both parties told the Tribunal that Ms Dao did not respond to the proposal immediately but gave her answer two days after the proposal. Mr Nguyen said that he and Ms Dao went out for dinner and coffee in Ho Chi Minh City and that Ms Dao had accepted the proposal while the parties were walking after dinner. Ms Dao said that she and Mr Nguyen were at her house and she had accepted the proposal while at home. When invited to comment on this inconsistency, Mr Nguyen stated that as the event took place several years ago he was no longer sure of the details.

    e.When asked about Ms Dao’s friends, Mr Nguyen could not name any of them and stated that he had only met one of her friends while in Vietnam. Ms Dao told the Tribunal that she had introduced Mr Nguyen to a number of her friends, including at their engagement party. When invited to comment on this inconsistency, Mr Nguyen stated that the friends who attended the engagement party were not close friends. He stated that he had only been introduced to one friend of Ms Dao but could not remember her name.

    f.Mr Nguyen gave confused and at times contradictory evidence relating to if he had met Ms Dao prior to moving in with Dao Thi Mong Cuc and Van Tuong Nguyen (Ms Dao’s aunty and uncle who the Tribunal notes were both witnesses at the hearing). Mr Nguyen clarified that he had moved into the a property with the aunty and uncle after returning from his trip to Vietnam in 2013 during which he met Ms Dao for the first time. Ms Dao also stated that Mr Nguyen had moved in with her aunty and uncle after he returned from his 2013 trip to Vietnam. Both the aunty and the uncle told the Tribunal independently that Mr Nguyen had lived with them for a total of three years and that the trip to Vietnam in 2013 (during which time he met Ms Dao for the first time) occurred one year after Mr Nguyen had moved in to live with them. The Tribunal notes that both the aunty and uncle accompanied Mr Nguyen on this 2013 trip to Vietnam.  When invited to comment on this inconsistency, Mr Nguyen offered a confused response and appeared to state that he had moved in with the aunty and uncle prior to the 2013 Vietnam trip. The Tribunal asked for clarification of Mr Nguyen’s response as it was not clear what his answer to this question now was. Mr Nguyen then said that he did not wish to change his original answer and stated categorically that he moved in with Ms Dao’s uncle and aunty after the 2013 Vietnam trip and he had not lived with them prior to the trip.

1. The Tribunal finds these explanations for the above stated inconsistencies unsatisfactory because they do not adequately or plausibly account for the significant discrepancy between the parties’ responses. It follows that the Tribunal does not accept these explanations for the inconsistencies (detailed above) in the oral evidence provided by Mr Nguyen and Ms Dao.

2. The Tribunal notes that there were some inconsistencies in the oral evidence that Mr Nguyen was able to adequately and plausibly explain when provided the opportunity to do so. These include:

   a.Mr Nguyen told the Tribunal that he had first met Ms Dao’s parents in 2014 after he proposed marriage. Ms Dao told the Tribunal that Mr Nguyen had met her parents during his previous trip to Vietnam in 2013. When invited to comment on this inconsistency, Mr Nguyen stated that he may have provided an incorrect answer and that he believed that he did in fact meet Ms Dao’s parents during his 2013 trip. The Tribunal accepts this explanation.

   b.When questioned about Ms Dao’s employment, Mr Nguyen told that Tribunal that she sells BBQ supplies and coal from a market stall. Ms Dao told the Tribunal that she sells coal from her house. When invited to comment on this inconsistency, Mr Nguyen stated that Ms Dao’s house is adjacent to a market and that all of the houses on her street have stalls out the front. The Tribunal accepts this explanation.

3. The Tribunal notes that in his closing remarks at the hearing, Mr Nguyen’s representative stated that his client was a simple farm worker who did not understand the significance of certain questions and/or timelines. The Tribunal notes that it took significant time and effort to ensure that Mr Nguyen understood what was being asked of him and rephrased or repeated various questions when required. The Tribunal notes it has no specific evidence before it relating to any medical conditions or mental health issues that would impair Mr Nguyen’s ability to comprehend questions or their significance to the proceedings. The Tribunal does not accept this explanation for inconsistencies in Mr Nguyen’s oral evidence.

4. The Tribunal is deeply concerned by the cumulative effect of the inconsistencies listed in paragraph 36. The Tribunal is particularly concerned by the conflicting accounts the parties provided regarding specific details of the inception and development of their relationship, including details of when and how the parties first shared their romantic feelings for each other and the circumstances of the proposal (and Ms Dao’s acceptance of it). The Tribunal is also concerned by the inconsistencies relating to the parties knowledge of each other’s personal circumstances, including Ms Dao’s lack of specific knowledge about Mr Nguyen’s current living arrangements and Mr Nguyen’s lack of lack of specific knowledge about Ms Dao’s friendship circle, social life and interests.

5. The Tribunal places strong negative weight on the inconsistencies in the evidence provided by the parties, particularly those relating to the inception and development of the relationship. The Tribunal has formed the view that both Ms Dao and Mr Nguyen have not been truthful in their evidence with regard to these matters and that they are willing to provide untruthful information to the Tribunal when they consider it helpful to their case. This has led the Tribunal to doubt the general credibility and reliability of the parties’ evidence, and to question the genuineness of their claimed relationship.

6. The Tribunal acknowledges that some elements of the evidence presented by the parties do support their claims about the genuineness of their relationship. Having carefully considered all of the evidence of the relationship cumulatively and collectively, including issues related to the credibility of the parties, the Tribunal is not satisfied that the weight of evidence supports a finding that Ms Dao and Mr Nguyen genuinely intend to live together as spouses, either at the time of application or the time of this decision. Ms Dao therefore does not meet cl.300.216 and cl.300.221.

7. For the reasons above, the Tribunal finds Ms Dao does not satisfy the criteria for the grant of the visa.

   DECISION

8. The Tribunal affirms the decision not to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa.

   Scott Clarey
   Member