Nguyen (Migration)

[2018] AATA 5352

Nguyen (Migration) [2018] AATA 5352 (29 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Me Nguyen

VISA APPLICANTS:  Mr Van De Pham
Miss Thi Phi An Pham
Mr Van Luyen Pham

CASE NUMBER:  1715737

DIBP REFERENCE(S):  OSF2016039609

MEMBER:James Lambie

DATE:29 October 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 29 October 2018 at 11:06am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – live in separate countries – spent (at most) 136 days together since January 2013 – telephone records – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 309.211, 309.321

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 2017 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 (the visa applicant) applied for the visa on 6 July 2016 on the basis of their relationship with their 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(2) because she could not be satisfied that the visa applicant met the definition of spouse under s.5F and that, therefore, the secondary applicants were unable to satisfy cl.309321(a).

4. The review applicant appeared before the Tribunal on 7 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Van De PHAM, who is the visa applicant.

5. The review applicant was represented in relation to the review by her 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether Mr Pham is the spouse of Ms Nguyen for the purposes of the Act and Regulations.

   Whether the parties are in a spouse or de facto relationship

8. 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.

9. ‘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?

10. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties produced a Vietnamese Marriage Certificate issued in Cam Ranh City and bearing the registration date of 8 April 2016.  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?

11. This is the second marriage for each party.  Ms Nguyen was divorced in 2011 and has three children from that marriage.  Mr Pham was divorced on 2 May 2012 and has three children from that marriage, two of whom are included in the visa application.

12. The parties met on 16 January 2013 at Ho Chi Minh City airport.  Ms Nguyen had travelled with her children to Vietnam to attend her brother’s wedding and Mr Pham, a friend of her brother’s, was with him at the airport to pick her up.  Following Ms Nguyen’s brother’s wedding celebrations, Mr Pham invited Ms Nguyen on a tour of southern Vietnam including both his and her home towns.  She and her children returned to Australia on 26 February 2013.  They say they maintained regular contact by telephone and occasionally by mail. 

13. On 12 February 2014, Ms Nguyen and her daughters returned to Vietnam.  Mr Pham met them at the airport and took them to Ca Mau for a week.  They then travelled to Mr Pham’s home town of Cam Ranh and spent time together.  It was at this time, they say, that they fell in love.   She returned to Australia on 4 March 2014.

14. Ms Nguyen and her daughters again travelled to Vietnam from 12 January 2015 to 16 February 2015.  They say they spent the entirety of this trip together and it was during this time that Mr Pham proposed marriage.

15. Ms Nguyen and her daughters again travelled to Vietnam from 22 March to 11 April 2016.  The wedding was held at Ca Mau on 5 April, followed by a celebration in Cam Ranh on 7 April.  The marriage certificate was signed on 8 April.  The visa application was lodged on 26 July 2016.

16. Ms Nguyen travelled to Vietnam between 28 July and 17 August 2018. 

    Financial aspects of the relationship

17. There being no documentary evidence presented by the parties as to the financial aspects of the relationship, I made inquiries of the parties at the hearing in relation to their financial affairs.  There is no joint ownership of any assets, no joint liabilities, no pooling of financial resources, no legal obligations inter se and no sharing of the day-to-day household expenses.  Given that the parties live in separate countries, this is not surprising and I do not give weight to their inability to combine their financial affairs.  Ms Nguyen’s representative submitted that Ms Nguyen purchased her house in Willawong this year in anticipation of providing a home for the combined family.  It was purchased for $418,000 with the assistance of money lent by her mother and aunts.  No material was produced in support of this claim and no evidence was presented as to how Ms Nguyen manages the property and its outgoings on an income of $500 per week.  I give very limited weight to this claim.

18. Mr Pham’s evidence was that he has his own income from his aquaculture business and Ms Nguyen has hers from flower wholesaling and that, the parties being self-sufficient, there is no need for them to send money to each other.  He said that he sends money to Ms Nguyen’s mother in Vietnam from time to time but no documentation or other evidence of this was produced.  Ms Nguyen did not mention it and it forms no part of any of the written statements or submissions.

19. Both parties demonstrated some familiarity with the financial affairs of the other.  Given that in each case it involves a single asset, I give this only limited weight.

    The nature of the household

20. In considering the nature of the household, I have had regard to any joint responsibility for the care and support of children, the parties’ living arrangements and any sharing of housework.  Given the limited time the parties have spent together and the fact that they live in separate countries, there is only limited weight I can give to this factor.  However, I have considered what evidence is available in this regard.

21. Ms Nguyen has spent a total of 136 days in Vietnam since she met Mr Pham in January 2013.  She did not visit Vietnam between April 2016 and July 2018.

22. Temporary household registration certificates for Mr Pham’s home were produced for the periods 28 January 2013 to 9 February 2013 and 24 February 2014 to 2 March 2014.  The parties’ evidence, however, was that because Ms Nguyen was travelling with her children she stayed in hotels.  Her statement is that “when I am in Vietnam my husband and I live together as any normal couple.  We divide the household chores just like any other husband and wife.  I usually do the cooking and washing, my husband and I do the cleaning together and we both take care of the children with shared time.  When he goes to work I would prepare food for the family if we ate at home.  We share a household and responsibilities of the household together.”  This may be overstating the arrangement, given the use of hotels.

23. In the absence of other evidence, I have had regard to the knowledge each has of the other’s children.  Some familiarity with school arrangements and birthdays was exhibited by each party.  There was no independent evidence of any deeper engagement, such as gifts or other greetings.  I note that Ms Nguyen’s son refused to travel to Vietnam after the initial visit in 2013 and did not attend the wedding.

24. In the circumstances, there is little if any weight I can give to the evidence as to the nature of the household.

    Social aspects of the relationship

25. In considering the social aspects of the relationship, I have had regard as to 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 joint social activities.

26. As stated at paragraph 20, the parties have spent (at most) 136 days together since January 2013.  They have produced photographs for this period showing them together and in some social settings.  There are a number of photographs from 2013, which is to be expected given that the purpose of the journey was to celebrate Ms Nguyen’s brother’s wedding.  There is one photograph from 2014 which depicts a family meal.  There are a few photographs from 2015, produced after the hearing and all apparently taken on the one occasion.  There are several photographs from 2016, depicting the wedding and the couple’s families at the beach.  There are also photographs from 2018 (this trip having occurred after the hearing).

27. I consider it relevant that there was no-one from Australia invited to the wedding and that there is no evidence of any greetings or congratulations to the couple from anyone in Australia.  Ms Nguyen’s evidence was that she has no close friends in Australia and would have felt awkward inviting anyone.  I find this implausible.  I note there was a travelling party from Australia for Ms Nguyen’s brother’s wedding.  The sole evidence produced of any knowledge of the marriage in Australia is a statement from Thi Huong Pham who describes herself as a friend of Ms Pham’s and, in contradiction of Ms Pham’s evidence, says they have been good friends for 10 years and see each other several times a week.   All she can attest to is an awareness that Ms Pham has married.  She has had no contact of any type with her husband, not even an introduction over the telephone.  From the evidence there appears to be another friend, Ms Tuyen, who is close enough that they share the school drop-off and pick-up duties.  There is no evidence from this person.

28. Ms Pham took exception to the delegate’s conclusions on the manner in which the wedding celebrations were conducted.  For the avoidance of doubt, and in the absence of any evidence as to the relevant customs, I express no view and come to no conclusions in respect of them.

29. I consider the evidence from the couple’s time together in Vietnam to be lacking in respect of the social aspects of the relationship.  I have given some weight to the photographs from 2018, but observe that the settings in which they were taken seem responsive to some of the criticisms I made at the hearing.  On the Australian side, what evidence there is tends to undermine, rather than bolster, the parties’ case.

    Nature of the parties’ commitment to each other

30. In considering the nature of the parties’ commitment to each other, I have had regard to the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other and whether they see the relationship as long-term.

31. As noted above, the parties have now known each other for more than 5 years and have been married for some two and a half years.  They have spent, possibly, some 136 days together in that time. 

32. Both parties gave evidence that they maintain very frequent contact by telephone.  Ms Nguyen’s evidence was that Mr Pham made the majority of the calls, but that she would also call him using the Viber application.  Some very brief Viber records were produced after the hearing which were of very limited value.  Mr Pham produced his telephone accounts from March 2013 to February 2018, with some omissions.  I have considered these records carefully because, apart from the parties’ written statements and oral evidence, they are the only independent evidence of the parties’ commitment to each other.  I observe that Ms Nguyen’s birthday is on the 20^th of July.  Mr Pham called Ms Nguyen on her birthday in 2013.  The accounts for the month of July for every year thereafter are omitted. Given that this occurs without exception or explanation, I consider this omission deliberate.  The accounts indicate that the parties communicated 3 to 5 times a month as a rule.  There are some anomalies:

    ·for the month of February 2014 the accounts indicate only one call, despite Ms Nguyen being due to arrive on the 12^th of that month;

    ·for the month of March 2014 there are only two calls, despite Ms Nguyen having returned to Australia on the 4^th of that month and the parties having (on their evidence) professed their love for each other;

    ·for the month of February 2015 there is only one call, despite Ms Nguyen having returned on the 16^th of that month and having become engaged to be married;

    ·for the month of April 2015 there is only one call and there only two for the month of June 2015. 

    ·there are 9 calls and 5 SMS messages for the month of February 2017.  Seven of the calls occur on 27 and 28 February.  The parties were interviewed by the Department on 28 February;

    ·of all the calls made between the parties over 5 years, there is one that exceeds 20 minutes. There are 22 that exceed 10 minutes; 14 of these occurred between March 2013 and April 2014;

    ·by far the majority of all calls are for two minutes or less.

    ·Ms Nguyen gave evidence that she and Mr Pham observed the Tet festivities and they would contact each other to exchange greetings.  The accounts record the placement of no calls on the date of Tet for 2014, 2015, 2016, 2017 or 2018.  The parties were in Vietnam for Tet in 2013:  it is not clear from the photographs that they celebrated the holiday together that year;

33. After the hearing, Ms Nguyen produced her telephone accounts for six months of 2016 (with unexplained omissions).  They indicate between 1 and 3 very brief calls per month with a maximum duration of 6 minutes 25 seconds.

34. There was no evidence produced to me as to the efforts either party made to celebrate each other’s children’s birthdays or other special occasions.  There was no evidence of any written communications between the parties, with the possible exception of some very brief untranslated Viber text messages in 2017.

35. I note the parties’ written and oral evidence and the submissions from the representative as to the companionship and mutual support they provide each other and their own assessment that they see the relationship as long term.  I give this material some weight, but when balanced against the objective material before the Tribunal, I am not satisfied that the evidence supports the conclusion that the nature of the relationship is one that might be expected of a genuine marriage. 

36. In view of these findings, I cannot conclude that the evidence supports a finding that the parties have a mutual commitment to shared life to the exclusion of others, or that they have a genuine and continuing relationship, or that they intend to live together on a permanent basis.

37. On the basis of the above the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time the visa application was made or at the time of this decision.

38. Therefore the visa applicant does not meet cl.309.211 and cl.309.221.

39. As Mr Pham does not meet the requirement specified in cl.309.211(2), the secondary applicants are unable to satisfy cl.309.321(a).  .

40. For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.

    DECISION

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

    James Lambie
    Senior 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).