Nguyen (Migration)

[2018] AATA 5371

Nguyen (Migration) [2018] AATA 5371 (7 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Van Qui Nguyen

VISA APPLICANT:  Mrs Thi Xoa Nguyen

CASE NUMBER:  1611418

DIBP REFERENCE:  OSF2015/070980

MEMBER:Rosa Gagliardi

DATE:7 November 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211 of Schedule 2 to the Regulations; and

·cl.309.221 of Schedule 2 to the Regulations.

Statement made on 07 November 2018 at 5:10pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional) – genuine and continuing spousal relationship – sporadic relationship with ex-wife years prior to meeting applicant – no indication that current relationship fraudulent – child support payments to ex-wife – widely recognised long-term relationship – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5F, 65
Migration Regulations 1994, Schedule 2, cls 309.211(2), 309.221, r 1.15A(3)

CASES
He v MIBP [2017] FCAFC 206

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 30 June 2016 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 8 May 2015 on the basis of her relationship with her sponsor, the review applicant. 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. Other members of the family unit, if any, who are applicants 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 it was considered that the applicant and the sponsor were not in a genuine and continuing spousal relationship as defined by s.5F.

4. The review applicant appeared before the Tribunal on 17 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant overseas.  In addition, friends in Australia gave evidence, being: Thi Hoa Nguyen; and Van Thanh Nguyen.

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 matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   SPOUSE/DE FACTO (cl.309.211(2), cl.309.221)

   Whether the parties are in a spouse or de facto relationship

7. 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. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

8. ‘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 visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

   Are the parties validly married?

9. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. 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?

   Background

10. The sponsor divorced his former wife with whom he had four children in 2005.  One of the children was born after the sponsor and his former wife divorced.  The applicant has no previous marriages or de facto relationships.  In December 2013 the applicant came on a Visitor visa to visit her sister.  On 31 January 2014 it is claimed that the applicant and her sister attended a party celebrating Lunar New Year at her aunt’s house where the applicant, it is claimed, met the sponsor who is a friend of the applicant’s aunt.  The parties met again one week later and their relationship started to develop.  On 24 March 2014 the couple returned to Vietnam together, and the sponsor came back to Australia on 5 May 2014.  It is claimed that the parties kept in touch by phone and they started a long distance relationship.  The sponsor proposed marriage over the phone on 29 June 2014, and the parties held a small wedding ceremony at the applicant’s house in Vietnam.  A lawful marriage was carried out on 5 February 2015.

    The financial aspects of the relationship

11. The parties are separated geographically so it would be unreasonable to expect that they could have amassed ownership of assets or liabilities together.  Such arrangements are more applicable to persons who are sharing a household together on a permanent basis.  Similarly, the Tribunal would not have expected the parties to have pooled their resources to any significant degree or to have legal responsibilities towards each other.  Given their separation it is also difficult to expect that the parties could share their day to day expenses. 

12. The extent of any exchange of financial gifts needs to be viewed in the context of the financial capacity of the parties.  The sponsor is on a Disability pension and the applicant is learning English and preparing herself for work as a beautician prior to travelling to Australia.  Between them both, their resources are limited. 

13. At the time of application the parties provided six money transfer receipts showing a total of AUD$1,150.00 was transferred to the applicant between July 2014 and February 2016.  At the time of review further sums have been transmitted by the sponsor, being: AUD$300 in October 2016; AUD$400 in May 2017; AUD$100 in February 2017; AUD$300 in February 2017; AUD$200 in October 2017; AUD$200 21 in December 2017; and AUD$350 in April 2018.  The Tribunal accepts that the sponsor has invested in the relationship to a degree that is consistent with his personal circumstances.

14. In addition, the Tribunal notes that the sponsor has travelled to visit Vietnam on a not infrequent basis. 

    The nature of the household

15. It is claimed that the parties after getting to know one another briefly, returned to Vietnam together on 24 March 2014.  The parties’ movement records confirm that this is the case. 

    The Tribunal has viewed the sponsor’s movement records which show that he has, barring 2017, visited Vietnam annually since (and prior to) the parties marrying there lawfully on

    
    

    5 February 2015. 

16. Evidence by way of a Temporary Residence Confirmation has been submitted reflecting that the parties stayed together in Hue from 13 May 2018 to 5 June 2018, at the residence of the applicant and her family.  The Tribunal places weight on this Temporary Residence Confirmation as it supports the extensive photographic material submitted which shows the parties in household situations, along with family and friends in Vietnam.

17. In addition, the Tribunal has sighted evidence that the parties travelled together to Thailand.

18. The parties do not have children of their own and the sponsor has four children from a previous relationship, hence given the parties’ circumstances, it is difficult to make conclusions about the parties’ joint responsibility for care and support of children.

    Social aspects of the relationship

19. At the time of application the delegate had cause for concern because the sponsor’s children did not attend the wedding and the sponsor’s brothers in Vietnam similarly did not attend.  Further, the applicant’s sister from Australia did not travel to attend the wedding and there were concerns generally with the limited attendance at the wedding.  The delegate therefore concluded that the relationship was not widely recognised by others, in particular family and friends.

20. At the time of review the parties have now submitted several statutory declarations from third parties attesting to the genuine nature of the relationship.  These include from Australia:

    ·Ms Suong Thi Hoang, stated that the sponsor is a friend of her husband and that they have known each other for 25 years, as they knew each other through common friends in their hometown.  The applicant is the niece of Ms Suong Thi Hoang, and the applicant stayed at her home when she came to Australia on a Visitor visa in 2014.  It was at Ms Suong Thi Hoang’s place that the parties met at the Lunar New Year Party 2014.  Ms Suong Thi Hoang considers the relationship to be genuine because she has seen the development of the relationship long distance and that it is the parties’ plan to have a child after the applicant establishes herself in Australia.

    ·Binh Thi Phan who has shared a place with the sponsor and has known him for five years states that he could see that the sponsor was always very sad and missed his wife and that he believed “their love is truly only for each other”;

    ·Phuc Vo has written that he had met the applicant at the home of his friend, the sponsor, and that the sponsor told him, among other things, that the applicant made him so happy after his first broken marriage;

    ·Quy Xuan Nguyen states that he has known the sponsor for 17 years and the applicant for ten because she is his sister-in-law (the sister of his wife) and she stayed at his home when she visited Australia.  Mr Quy Xuan Nguyen also stated, “I believe in the relationship between Xoa and Qui is genuine and continuing because they have been together for many years since the day they first met each other.  Although they are currently living apart, they always keep in touch to each other.  I knew Qui’s health was not good and he also told me that he always felt stressed out when thinking about living without Xoa”;

    ·Duy Quang Che, relative of the applicant, living in Australia attesting to the genuine and continuing nature of the relationship;

    ·Nay Thi Che, grandmother of the applicant who is living in Australia.  She states that she has seen the sponsor at family gatherings, among other things;

    ·Trang Ngoc Tran who has known the sponsor for ten years because he is the nephew of Ms Tran’s neighbour, and the sponsor is also her friend, and that the sponsor wants his wife to join him in Australia to build their own family;

    ·Khiem Trong Hoang who has known the sponsor for over three years stated that the sponsor has confided in him about the relationship with the applicant and that no matter how hard their situation is, “the couple still side by side to each other”;

    ·Xe Thi Nguyen, older sister of the applicant has written that she has witnessed how their relationship started until they became husband and wife and how they share their life and responsibilities together;

    ·Thao Thi Cao who has known the sponsor for 23 years states that the sponsor is her husband’s friend and that she had met the couple in Australia prior to the marriage;

    Witnesses from Vietnam

    ·Hoang Thi Luyen, mother of the sponsor, has submitted that she knew her son had been alone for a lengthy period and that she was glad to hear he had met someone.  She states that the sponsor travelled back to Vietnam with the applicant to introduce her to the family and that her family celebrated a wedding in accordance with traditional formality, with attendance from family members from both sides;

    ·Hoang Thanh Phuc, uncle of the applicant has stated that the couple went to visit him in his hometown after the wedding;

    ·Che Thi Hien, cousin of the applicant’s grandmother states that she was invited to the wedding and is aware that the parties are upset to be apart;

    ·Nugyen Tat, father of the applicant, confirms that the sponsor went to meet his family with the applicant in 2014 before marrying.  He states that he thinks highly of the sponsor;

    ·Hoang Thi Hang, mother of the applicant, stating that her daughter and the sponsor communicate by phone every day but that the applicant has become melancholic without her husband beside her;

    ·Nguyen Hoa, uncle of the applicant, attesting to having attended the parties’ wedding;

    ·Phan Xuan Luong, kin of the sponsor, also confirms he attended the wedding and that in their hometown he had seen them together;

    ·Nguyen Thi Tuoi, neighbour of the applicant, who claims to be aware of the marriage;

    ·Tran Cong Khang, uncle of the sponsor, confirms he was invited to the wedding; and

    ·Tran Thi Thai, grand-aunt of the applicant expressing her awareness of the relationship and that the couple were attached to one another.

21. The Tribunal places weight on the extent of the knowledge of the relationship and that it is seen by third parties as being genuine and continuing.  The photographic material supports the contention that the sponsor’s and applicant’s respective families in Vietnam know one another, and socialise together in recognition of the bond between the applicant and sponsor as spouses.  There are, for example, photos of a Mother’s day celebration at the home of the sponsor, together with his mother, which the applicant has also attended.  Other photos depict the parties celebrating the birthday of the sponsor at a restaurant in Vietnam, at which friends and relatives of the parties attended.  The applicant is also depicted with a wide range of family members of the sponsor.

22. In addition, there are photos of both sets of parents together in Vietnam. 

23. As well as evidence of the parties having travelled together to Thailand, the Tribunal accepts that the parties have travelled within Vietnam also, and that they present as a couple both within and outside the parties’ communities in Vietnam. 

24. The sponsor explained that his brothers overseas did not attend the wedding because he had not been in a good relationship with them.  The sponsor’s own children have been silent on whether or not they accept the relationship as being a genuine and continuing one.  Having said this, it is not always the case that children from a former marriage might accept a parent re-partnering.  While the Tribunal would have liked to hear from the sponsor’s children, the Tribunal finds that the evidence before it overwhelmingly demonstrates that the parties’ relationship is widely recognised in their respective social circles and the wider community.

    The nature of the commitment to one another

25. At the time of application there were concerns that the applicant’s knowledge of her spouse’s children was limited.  The case was also problematic because there were suspicions that the sponsor may still have been in a genuine and continuing spousal relationship with his former wife, thereby meaning that the applicant and the sponsor’s commitment to one another was not exclusive of others.

26. The circumstances that gave rise to these concerns involved the sponsor claiming that he had separated from his first wife in 2004 but, later that year, the sponsor’s first wife became pregnant with their fourth child.  The sponsor and his first wife divorced on 14 February 2005.  The sponsor in a statutory declaration claimed that in 2007 he travelled to the USA by himself and his ex-wife followed in the hope of rekindling the relationship with him.  At interview with the Department, the applicant stated instead that it was the sponsor who wanted to rekindle the relationship and his ex-wife was the one against the idea. The applicant was unable to explain the inconsistency.  Departmental systems also indicate that the sponsor travelled with his ex-wife from the USA on 16 May 2006 after their divorce.  Not unreasonably the Department wrote, “The common travel, inconsistencies and time spent together post-divorce raise doubts as to the true relationship status of the sponsor and his ex-wife.  The Department also received information that the sponsor’s ex-wife appears to have previously entered into and organised contrived marriages for relatives”. 

27. These facts prima facie appear concerning.  The Tribunal has, however, placed them in the context of what appears to be the on-again, off-again relationship between the sponsor and his former wife well before the applicant and the sponsor had even met.  The Tribunal does not consider it can be concluded that just because the sponsor and his former wife continued to engage in a relationship even after they were divorced, that this somehow automatically means that the relationship between the applicant and the sponsor is not genuine.  The sponsor explained that in May 2016, his former wife had followed him to the US because she wanted to reconcile with him.  These sets of circumstances, in themselves, are not implausible.  Relationships can fluctuate even after a formal divorce has taken place.

28. Furthermore, it is now over ten years ago that the sponsor and his former wife travelled back together from the US.  The Tribunal is not aware of any further combined travel closer to the period when the visa applicant and the sponsor were in a relationship in March 2014.  The Tribunal considers that any evidence of continued travel between the sponsor and his former wife, or indeed any evidence of a continued spousal relationship with his former wife, overlapping with the relationship between the applicant and the sponsor, would point to a lack of a mutual commitment by them.  Given the remoteness of the claimed joint travel, however, the Tribunal is not satisfied that this demonstrates that the parties are not in a genuine and continuing spousal relationship.

29. Similarly, the Tribunal places limited adverse weight on the fact that the applicant was not aware of the precise details of the sponsor’s fluctuating relationship with his former wife.  Given the time that has elapsed since the sponsor and his former wife’s joint travel, the Tribunal does not deduce that the relationship with the applicant and sponsor, which started some 8 years later, is therefore fraudulent. 

30. In terms of allegations that the sponsor’s former wife had been involved in the set-up of fraudulent marriages for the purposes of applicants gaining a migration outcome, the Tribunal does not have access to the evidence that would point to such claims.  The Tribunal cannot rely on such claims in the face of the positive evidence that shows that the relationship between the applicant and sponsor is a long-term one of four years’ duration and that the relationship is widely recognised.

31. The Tribunal does not have evidence before it that the sponsor’s ex-wife has currently re-partnered in a genuine manner to alleviate concerns that the sponsor and his ex-wife might still be in a relationship.  However, the sponsor has now submitted evidence by way of a Child Support Assessment issued on 28 March 2008, indicating that the sponsor was paying child support to his former wife for the child under 18 years.  If the sponsor and his former wife had continued to engage in a genuine and continuing spousal relationship, it is highly unlikely that they would have set about misleading the Australian Child Support Agency as far back as 2008, when the applicant was yet to meet the applicant. 

1. In addition, a more recent Centrelink document has been submitted, dated 18 September 2018, indicating that the sponsor was not partnered.  The Tribunal is unaware as to why the sponsor has not updated his Centrelink records to show that he is now married to the applicant, but his records do show that he is not married to his former wife.

2. The parties have also submitted evidence of communication between them and the Tribunal places some weight on this evidence.  In particular, at hearing the applicant had a detailed knowledge of the sponsor’s daily routine, including his need to swim regularly due to the injury to his back.  The Tribunal finds that the evidence at hearing about the sponsor’s health condition reflected that the parties provide one another with companionship and emotional support.

3. For all the above reasons, the Tribunal, therefore finds that the parties are in a genuine and continuing spousal relationship and that they have a mutual commitment to a shared life to the exclusion of others.  Moreover, the Tribunal is satisfied that the parties are not living separately and apart on a permanent basis, but are only living apart temporarily due to the circumstances of the applicant’s visa.

4. On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made and at the time of this decision.

5. Therefore the visa applicant meets cl.309.211 and cl.309.221.

6. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.

   DECISION

7. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

   ·cl.309.211 of Schedule 2 to the Regulations; and

   ·cl.309.221 of Schedule 2 to the Regulations.

   Rosa Gagliardi
   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).