Nguyen (Migration)

[2018] AATA 5964

Nguyen (Migration) [2018] AATA 5964 (5 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Van Diep Nguyen

CASE NUMBER:  1703012

DIBP REFERENCE(S):  BCC2015/1172046

MEMBER:Meredith Jackson

DATE:5 July 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 05 July 2018 at 2:59pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) – genuine spouse relationship – validly married – financial, household and social aspects of relationship – nature of commitment – breakdown of relationship and divorce – no ongoing relationship – marriage entered for visa purposes – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5F, 65, 359AA

Migration Regulations 1994 (Cth), r 1.15A, Schedule 2, cl 820.221(2)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the then Minister for Immigration and Border Protection on 8 February 2017 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, Mr Van Diep Nguyen, applied for the visa on 21 April 2015 on the basis of his relationship with his sponsor, Ms My Linh Do. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 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. Mr Nguyen, a tiler, is a citizen of Vietnam who claims to have met Ms Do, an interpreter, when she visited Vietnam in 2014 and again in 2015, when he visited his family in Australia. At the time, both parties had recently divorced their former spouses.

4. In February 2015, Mr Nguyen came to Australia as the holder of a visitor visa to stay with his sister in Melbourne. He married Ms Do two months later, in April 2015. Shortly after the wedding Mr Nguyen lodged his application for a Partner visa sponsored by Ms Do.

5. In February 2017, the delegate refused to grant the visa on the basis that the applicant was not the spouse (as that term is defined under the Act) of the sponsor at the time of the visa application.

6. Mr Nguyen appeared at his review hearing on 22 March 2018 to give evidence and present arguments. Ms Do did not attend the review hearing; the parties are estranged.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

8. The applicant was represented in relation to the review by his registered migration agent, who attended the hearing.

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

   BACKGROUND AND CHRONOLOGY

10. In November 2007, Mr Nguyen came to Australia for the first time as the holder of a sponsored family visitor visa, and visited again on the same basis between October 2009 and March 2013.

11. In 2013, on the third visit, which lasted three months, Ms Do claims she visited Mr Nguyen in Melbourne several times and they developed a romantic interest at this time. The Tribunal notes Ms Do claims this was not their first meeting; in a written submission she stated that they first met in Vietnam in 2010. Mr Nguyen, however, claims the parties first met, in Vietnam, in 2014.

12. In July 2013, Mr Nguyen divorced his first wife in Vietnam. There are three children of that marriage.

13. In March 2014, Ms Do divorced her third husband. There are three children of the first and third marriages.

14. On 7 February 2015, Mr Nguyen arrived in Australia on a visitor visa.

15. In March 2015, Ms Do visited Mr Nguyen in Melbourne, returned to Brisbane and then again went to Melbourne, staying with Mr Nguyen’s sister while there.

16. On 21 April 2015, Mr Nguyen married Ms Do in Melbourne. He submits that Ms Do returned to Brisbane shortly after the wedding while he stayed on to arrange his affairs before joining her in Brisbane and moving into her home.

17. On 21 April 2015, Mr Nguyen lodged a Partner visa application and was granted a Bridging visa A, which remains in effect.

ISSUES AND LAW

1. Partner visas involve a two stage process. The visa applicant must hold a provisional visa in order to be granted a permanent visa. The grant of the provisional visa enables the visa applicant to travel to and remain in Australia on a temporary basis. The grant of a permanent visa may subsequently be considered, and generally depends on whether the relationship has continued for a period of at least two years.

2. At the time the visa application was lodged, Class UK contained only one subclass: Subclass 820 (Partner (Temporary). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this matter the primary criteria include clause 820.211 and clause 820.221.

3. Clause 820.211(2) requires that at the time the visa application was made the visa applicant is the spouse or de facto partner (as those terms are defined by the Act) of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen and that the sponsor was not prohibited from being a sponsoring partner under cl.820.211(2B). In the present case Mr Nguyen claims to have been the spouse of the sponsor, Ms Do, an Australian citizen, at the time of the visa application.

4. Clause 820.221 requires that the visa applicant continue to satisfy the clause 820.211 criteria at the time of decision, unless the relationship has ceased and certain circumstances exist. The specified circumstances include that the sponsor has died and other requirements are satisfied (clause 820.221(2)), the visa applicant or dependent child of the visa applicant and/or the sponsor has suffered family violence committed by the sponsor (clause 820.221(3)(b)(i)) or there is a child in respect of whom the applicant and sponsor have certain parental rights and obligations under the Family Law Act 1975. (clause 820.221(3)(b)(ii)).

5. In this case, Mr Nguyen has claimed that suffered family violence committed by Ms Do, during their relationship, which relationship has since ceased.

6. The preliminary issue in the present case is whether at the time of the visa application, Mr Nguyen was in a spousal relationship with the sponsor.

   Whether the parties are in a spouse or de facto relationship

7. Clauses 820.211 and 820.221 of the Regulations require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen.

8. In the present case the applicant claims to be the spouse of the sponsor 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 parties’ household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.

   Are the parties validly married?

10. The parties provided the Tribunal with a copy of a Victorian Marriage Certificate registration number 6388/2015 which provided particulars of a marriage solemnised between Mr Nguyen and Ms Do on 11 April 2015.  On the evidence, as at the date of the visa application, 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).

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The Tribunal, in considering whether the parties were in a spousal relationship at the time of the visa application, had regard to all of the written and oral evidence before it about the parties’ circumstances at that time, including the matters specified in r.1.15A of the Regulations. It also considered documentary evidence contained in the Departmental and Tribunal files which included, but was not limited to, the delegate’s decision; personal submissions addressing issues raised by the delegate in their decision; a marriage certificate; photographs of the parties at a post-wedding lunch and social events with family members; joint bank account statements; the visa application and supporting documents; payslips; payment receipts addressed to Mr Nguyen at the parties’ Brisbane address; and divorce and identity documents for each of the parties. It also considered and presented to the applicant a Certificate and Notification regarding the Tribunal’s discretion to disclose certain information under s376 of the Act; and considered relevant comments and responses to the information received by the Department, the gist of which was put to the applicant under s.359AA.

12. The Tribunal also received oral and written evidence relevant to the period post the visa application which included but was not limited to: a report from Dr Toan Nguyen, a psychologist at Inala Youth Service; a statutory declaration by Mr Nguyen’s younger brother in Melbourne about the breakdown of Mr Nguyen’s marriage to Ms Do; a report by a clinical psychologist about Mr Nguyen’s mental health and oral evidence by Mr Nguyen in which he claimed oral abuse and intimidation against him by the sponsor after the relationship became strained in late 2016. The issues raised were examined with the applicant at the request of his migration agent at the hearing. The Tribunal stated in the hearing that the preliminary issue before it was whether the parties were in a spousal relationship, as defined, at the time of the visa application, and that it needed to be satisfied that there was such a relationship at that time, before consideration would be given to a claim of family violence.

    APPLICANT’S HEALTH CONCERNS

13. At the commencement of the hearing, Mr Nguyen and his representative indicated that Mr Nguyen was taking anti-depressant and other medications and said this might affect his recall of certain events, including dates. The Tribunal said it understood, and that it had guidelines it followed when a witness was feeling vulnerable or unable to answer questions. The Tribunal observed to Mr Nguyen that he seemed to be answering questions very well but it wanted to be satisfied that he remained comfortable with how he was coping with the hearing as it progressed. The Tribunal said that if at any stage he needed a break in proceedings, it would be granted. Mr Nguyen replied that he was okay. The Tribunal noted that on one occasion Mr Nguyen had repeated difficulty recalling the year of an event, however he did so accurately after extensive re-phrasings and with his agent’s assistance. On a further occasion, Mr Nguyen submitted that he met Ms Do in Vietnam in 2014, which contradicted Ms Do’s evidence of them meeting in Vietnam in 2010 and Mr Nguyen’s brother’s evidence of them first meeting in Melbourne in 2013. The Tribunal was mindful of Mr Nguyen’s demonstrated difficulty with dates and did not attempt to resolve this discrepancy at the hearing; rather, it accepts that Mr Nguyen first met Ms Do at a point earlier than 2014.

    CIRCUMSTANCES OF THE RELATIONSHIP

14. Financial aspects of the relationship. The Tribunal considered evidence at the time of the visa application in relation to (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. Mr Nguyen said that after the wedding, when he first went to live in Ms Do’s home, they briefly discussed sharing assets but Ms Do had said “everything is in place so we leave everything as it is”. He claimed Ms Do did not wish to put their finances together because, she had told him, her previous partner had wanted a settlement when they divorced, so she wanted to keep things separate. They did not pool their income because Mr Nguyen didn’t have any at first. This was a difficult period where Ms Do had to pay for most things, but he claimed she was happy to do so. After he went to work as a tiler he was paid around $400 a week in cash, which he paid into the joint account they had established. Ms Do’s wages were not deposited to the joint account but to her personal account. He said if he ran out of money she would contribute to what he called “my account”. Asked if Ms Do had nominated him as a beneficiary of her superannuation accounts, he responded that she had experienced many deceits from past relationships so she doesn’t trust anyone.

15. The parties submitted a copy of a 2016 tax return for Mr Nguyen showing an income of $3,480 in the financial year 2015-16 naming Ms Do as his spouse. Her income is shown as $19,000. Various utility and transport accounts provided were each in separate names.

16. The evidence before the Tribunal shows that the joint account was not used often, except at the very beginning of the cohabitation. While Ms Do did pay expenses for her husband for a few weeks before he found work, it is clear there were no plans put in place, or even considered, to jointly own assets or share liabilities in future. There was little to no combining of financial resources according to documentary and oral submissions and no record of any major or minor financial commitments made or liabilities shared. Mr Nguyen submitted that Ms Do deliberately pursued a strategy of separate financial arrangements so she could protect her own interests and not be financially obligated to her new husband if the relationship ended, as it subsequently did. Mr Nguyen submitted that his wife had didn’t trust anyone on the basis of these past experiences. The Tribunal does not accept there was a joint and shared approach to finances. It finds Mr Nguyen did not have any legal obligation to Ms Do nor she to him. The Tribunal accepts that in the early stages of the relationship Mr Nguyen’s wages were deposited into the joint account, but finds this was done to satisfy Ms Do’s demands, rather than being evidence of the parties functioning as a couple who share day-to-day expenses. The Tribunal places little weight on the financial aspects of the relationship as being consistent with the claimed relationship at the time of the visa application.

17. Nature of the household. The Tribunal has considered all the relevant evidence, including evidence of events after the date of application, regarding the nature of the household at the time of the visa application. including in relation to (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. The Tribunal does not have evidence before it that at the time of the visa application there was any shared household activity, in part because a household was yet to be established. Mr Nguyen stated that “after the marriage papers were signed”, he stayed on in Melbourne to sort out his affairs, while Ms Do returned to the home she owned in Brisbane. Within a few weeks of the wedding Mr Nguyen moved into Ms Do’s home and he gave oral evidence that from then on, he did most of the house and yard work while Ms Do worked outside the home as an interpreter. Ms Do’s written submission at the time of the visa application was that the housework was shared. Mr Nguyen said he eventually began to train as a tiler with a firm based at the Gold Coast and this took him away all week, but he returned to the house on weekends. He gave evidence that over a period of a month or two, while he was away, he had put in place contact arrangements to help demonstrate that he was living at Ms Do’s house, so that if immigration authorities called to check, he would be able to prove he was away temporarily, travelling to learn a trade. Every second week Ms Do’s son came to stay with her, and Mr Nguyen claimed that he treated the boy like a son on those occasions. When he came home from work he would kick balls with the boy in the yard and enjoyed a good relationship with him. In the latter stages of the parties’ cohabitation, Mr Nguyen said the house and yard work became a major issue within the marriage because, despite his best efforts, his wife accused him repeatedly of failing to do his duties or to come home on time.

18. The Tribunal finds the household aspects were only barely established at the time of the visa application. It does not accept Ms Do’s submission at the time of the application that the housework was shared, nor Mr Nguyen’s submission of the same time that the parties were happy to share domestic duties. The Tribunal has little other than these broad submissions on which to establish whether they shared household duties. The Tribunal does accept that Mr Nguyen did most of the work in the house and yard because, he stated, the quality of his effort became a contentious issue in the later stages of the relationship. However the Tribunal finds this does not provide reliable and convincing insights into how, at the early stages when Mr Nguyen applied for the visa, routine house and yard work was shared between the parties.

19. Mr Nguyen has submitted that he helped take care of Ms Do’s son when he was resident in the house, and played with him and his friends, but without Ms Do’s input as to the nature of the relationship, the Tribunal has an insufficient basis on which to find the parties genuinely shared the care of the child. Mr Nguyen did not have regular interaction with Ms Do’s other two children, who were older than her son. The Tribunal finds, having considered the evidence before it about the household, that the parties cohabited, but finds that fact is not a sufficient indicator of how the household functioned and as such it is unable to draw firm conclusions on the household arrangement. Therefore it places little weight on the nature of the household as being consistent with the claimed relationship at the time of the visa application.

20. Social aspects of the relationship. The Tribunal considered all relevant evidence, including evidence of events after the date of application, regarding the social aspects of the relationship at the time at the time of the visa application, including (i) whether the persons had represented themselves to other people as being in a spousal relationship with each other; (ii) the opinion of the person’s friends and acquaintances about the nature of the relationship and (iii) any basis upon which the persons planned and undertook joint social activities. Ms Do’s written submission to the Tribunal stated that Mr Nguyen was her cousin’s cousin. She had discovered this while visiting him in Vietnam. She stated that she met his sister in Melbourne at a Catholic community group and this strengthened the relationship with the family. Mr Nguyen submitted that their external social life during their cohabitation almost entirely revolved around family, including with relatives of Ms Do’s previous husband, who have two children of a similar age as Ms Do’s son. As to whether their social circle reached beyond the family, he said: “The period of time before the decision when we were happy together, we went out as normal, for a dinner. I don’t know if My Linh has very many friends or not. She knows a lot of people but she never invited anyone home.” He said Ms Do she presented them as a married couple within the family “but with friends I really can’t say”.

1. The parties provided photographic evidence to the Tribunal and to support the visa application, all of it featuring events with members of the family. The parties submitted at the time of the application that they were looking forward to socialising together. However the Tribunal does not accept this is how the social life of the pair unfolded, nor does it have before evidence that they undertook any joint social activities with friends or others outside the immediate family. One witness to the relationship, Mr Ngoc Croft of Inala Youth Service, submitted that: “It is hard to find witness for his genuine marriage. As Diep married in Victoria and in Brisbane he lived a quiet and isolate(d) life with his bride, having no relatives, no friends, and just some workmates and church acquaintances. As a result, when the marriage was broken down, there were very few people who knew his real story.” He goes on to state that a tenant in Ms Do’s house, Ms Do’s relatives and some church acquaintances knew about the breakdown, but they had refused to help out because they did not want to get involved in Ms Do’s matters.  The Tribunal finds the submission of the witness confirms the evidence of Mr Nguyen regarding how Ms Do presented, or did not present, the relationship to her external friends.

2. The Tribunal finds the parties did not present themselves as a couple outside the family nor did they undertake joint social activities beyond family events. Weighing the evidence before it, the Tribunal finds the social aspects of the relationship were highly limited and that any relationships Ms Do had with friends or colleagues or church members were not part of the parties’ life as a married couple. It therefore places little weight on the social aspects of the relationship as being consistent with the claimed relationship at the time of the visa application.

3. Nature of persons' commitment to each other. The Tribunal considered evidence regarding the nature of the persons’ commitment to each other at the time of the application, including: (i) the duration of the relationship; and (ii) the length of time during which the persons had lived together; and (iii) the degree of companionship and emotional support that the persons had drawn from each other; and (iv) whether the persons had seen the relationship as a long-term one.

4. Mr Nguyen claims he first met Ms Do in 2014 in Vietnam but that the two did not meet in person again until he arrived in Australia in 2015. However, as mentioned earlier in these reasons, a submission from his brother claims the pair met in Melbourne in 2013 and Ms Do claims the first meeting was in 2010. Ms Do was not at the hearing, so could not be questioned about this, but the statement she supplied with the visa application states they first met in 2010 in Vietnam while she was on holidays with her then husband, daughter and son. The Tribunal was mindful of Mr Nguyen’s difficulty with dates (as canvassed earlier in these reasons) and preferred not to further test him in the hearing by urging him to clarify this, rather accepts that it is likely that Mr Nguyen and Ms Do had known each other from at least 2013. The Tribunal asked Mr Nguyen if there was any form of dating or relationship development period in the weeks after he arrived in Australia and leading up to the marriage in 2015, to which Mr Nguyen responded that the two had communicated by phone when he was in Vietnam. He stated he could not recall when that was, but said it was “about two years before”. He said that he did not recall whether the two discussed marriage, but that they did talk about feelings. In describing the circumstances immediately leading up to the 2015 meeting in Melbourne, Mr Nguyen said: “I called her and invited her to Melbourne, she stayed at my sister’s house, I told her I am here as a tourist, she asked about my family circumstances and I told her my marriage had broken down, and she told me she is also divorced and was unhappy and upset about it. She asked me if I could enquire with a lawyer to see if she could register for marriage with me and be together rather than I having to go back to Vietnam.”  The Tribunal finds, based on all the evidence before it, that the relationship was not in an ongoing state while Mr Nguyen lived in Vietnam, and only gained a form of currency after the meeting in Melbourne in 2015. If finds that at best, the couple were in a relationship for a period of eight weeks prior to the marriage.

5. In May 20015, the Department received information that the relationship was contrived for the purposes of Mr Nguyen obtaining a visa. At the hearing, this information was put to the applicant under subsection 359AA of the Act. The Tribunal explained that the information was covered by a certificate issued under section 376 of the Act, and the Tribunal had discretion to release the information. The Tribunal stated that it was of the view that the certificate was a valid certificate. The Tribunal gave a copy of the certificate to Mr Nguyen and his agent and asked for comments or submissions, if any, on the validity of the certificate. Mr Nguyen responded that he did not understand the significance of the certificate but was happy to comment on the information if put to him. The Tribunal finds that the certificate is valid. The Tribunal put the gist of the information to Mr Nguyen, saying that the department had heard from a member of the public that the parties married only for the purposes of Mr Nguyen seeking permanent residency and that the marriage was a fake. The Tribunal explained the information was relevant to the review because it might cause the Tribunal to doubt whether the parties had been in a genuine relationship at the time of the visa application and this might affect its decision. The Tribunal said it had not reached a conclusion on this but if it were to rely on this information, it would affirm the decision to refuse to grant the visa. Mr Nguyen indicated he understood the relevance of the information and would not seek extra time to consider it. He commented that he entered into the relationship, and his wife did too, based on love, and that the relationship was genuine.

6. The Tribunal said it might have a concern that the relationship and the marriage happened very quickly and asked Mr Nguyen if he had any comment to make on this. He said he and the applicant lived together in the same house for two years. He submitted that the relationship had broken down because, in late 2016, before the delegate made the decision, his wife had begun working as an interpreter and had started travelling, allegedly to visit customers, but he suspected she had a boyfriend. He said he knew she had received many text messages and while he had not read them, he had overheard phone conversations between Ms Do and the male party. He said when she had come back from Melbourne at one stage, he had told her she was not allowed to know “this person by the name of Tieu”. At that stage she had told him she “didn’t want to see (his) face in the house anymore”. After he received the Department’s decision, his wife, he said, “kicked me out of the house”. “So I got hit with two things at one time. She told me if I made a big deal out of it she was going to cancel sponsorship and send me home.”

7. The Tribunal finds that in terms of the persons’ commitment to each other, the parties at the time of the visa application had only been in a relationship as acquaintances or friends, and for at longest, eight weeks. It finds they had no prior history of a relationship other than “feelings” and “phone calls” made two years previously and for which no documentary evidence was supplied. Evidence differs on basic facts such as when and where the pair first met and this is further confused by the evidence of a witness, the applicant’s brother, and as previously noted, by Mr Nguyen’s possible memory difficulties, therefore the Tribunal places no adverse weight on these differences. Based on the evidence before it, the Tribunal is of the view that Mr Nguyen married Ms Do in order to seek permanent residency, a finding supported by Mr Nguyen’s oral evidence about Ms Do’s suggestion that he find a lawyer and see if they could register, rather than have him go back to Vietnam.

8. The Tribunal finds the circumstances of the relationship beyond the time of application do not support that the parties formed a committed and ongoing relationship. By the time their relationship broke down, in late 2016, the parties had lived together for a period of between 18-22 months, before Mr Nguyen began to suspect his wife was having an affair, and before Ms Do ordered Mr Nguyen to leave her house. The Tribunal finds Ms Do’s absence from the hearing confirms the parties’ relationship no longer exists; she was absent at a critical time in that she did not support her husband at the hearing. She has effectively been absent in his life since evicting him. In the absence of friends and family, Mr Nguyen has had to turn to community members for emotional support. Mr Nguyen has offered no indication that the relationship has a future and Ms Do’s position is made clear by her absence. On balance, the Tribunal finds the nature of the relationship was not consistent with being long-term, as claimed at the time of the visa application, and it places very little weight on the nature of the persons’ commitment in forming its decision.

   CONCLUSION

9. In forming a view as to whether Mr Nguyen was in a spousal relationship with Ms Do as defined by subsection 5F (2) of the Act, the Tribunal has had regard to all of the circumstances of the relationship including the specified matters in r.1.15A as canvassed above. It concludes as follows:

   (a)  The parties have given very vague accounts of relationship development. Their submissions variously claim that they kept in touch after meeting initially in Vietnam and during one of Mr Nguyen’s visits to Melbourne. Ms Do was not at the hearing, and Mr Nguyen was unable to convincingly explain how the relationship developed. He did not clarify whether communications between them in Australia and Vietnam, if they occurred, were simply a case of remaining in touch, or were a budding relationship. The Tribunal concludes, on balance, that it was the former at best.

   (b)  The information supplied to the Department that the marriage was contrived for the purposes of the visa are supported by Mr Nguyen’s own evidence about checking with a lawyer about whether he could register for marriage, and further, by marrying a distant family member within two months of arrival. Mr Nguyen has a history of visiting Australia regularly. He has close family in Australia, and came to see them often from Vietnam, and for up to three months at a time. The Tribunal concludes on all of the evidence before it, that at the time of the application he wanted a visa to live here permanently. While he had reasons to return to Vietnam, as his daughters live there with his former wife, he chose, after arriving in Australia in February 2015, to marry a person whom he had known on and off for a period of two to five years. In the space of weeks, he married her and moved to a new part of the country from where he was unlikely to return home. The Tribunal does not accept the scenario depicted by Mr Nguyen at the hearing, and in personal submissions made at the time of the visa application, that the parties were a couple falling in love and marrying for true love. The Tribunal places weight on the information before it that the marriage was contrived, particularly given that the information is consistent with the evidence before the Tribunal as to the formation and development of the relationship. The Tribunal notes that Ms Do, before marrying Mr Nguyen, had been married three times and each marriage had ended in divorce. On balance, the Tribunal does not accept that the evidence supports a genuine spousal relationship, especially one having been formed and formally committed to between February and April 2015, and concludes it was contrived for immigration purposes.

   (c)  The parties did not combine their interests. On Mr Nguyen’s evidence, Ms Do made a very early decision not to combine financial resources with Mr Nguyen. She kept her assets and her income to herself. She paid their expenses in the early days, and the parties set up a joint bank account, but this was only ever used sparingly by Mr Nguyen to deposit his pay. Ms Do distrusted Mr Nguyen from the start, and made this clear by dismissing the ideas of sharing ownership in the family home and pooling income. This does not align easily with being a genuine spousal couple, who fell in love and married in the space of weeks, who were starting a new life together. The Tribunal is not satisfied on the evidence before it that the couple had a commitment to a shared life and a relationship that was genuine and continuing.

   (d)  The parties did not represent themselves to those outside their family as being married. Mr Nguyen claims the social life of the parties was confined to family, and there is some photographic evidence that the family were regularly seen and socialised with, at least at the starting stages. The parties are distantly related so a wide family network is to be expected. However Mr Nguyen submits that beyond this, he did not know his wife’s friends, although suspects there were many in her circle. The Tribunal does not accept, despite the many photographs presented, that the social aspects of the parties’ relationship were consistent with their claimed relationship at the time of the visa application and this adds to its conclusion that the marriage was contrived.

   (e)  The Tribunal accepts Mr Nguyen does not speak English sufficiently to be able to convincingly and directly explain his motives in marrying, but he had an able interpreter at the hearing and repeatedly referred to his marriage to Ms Do in a material way. He spoke of “signing the marriage papers” and revealed through a statement that shortly after they met in February 2015: “She asked me if I could enquire with a lawyer to see if she could register for marriage with me and be together rather than I having to go back to Vietnam.” Later, he expressed that he had put arrangements in place so that “when the Department checked on us I would be able to prove I was travelling for learning a trade”. Together, these statements reveal a focus on actioning matters for migration purposes, rather than behaviour or actions consistent with a newly married couple who recently fell in love. The Tribunal concludes that that the marriage was a carefully planned event designed for the purposes of a visa, not a genuine spousal relationship.

10. On the basis of the above, the Tribunal is not satisfied that it has before it sufficient evidence that, at the time of the visa application, Mr Nguyen and Ms Do had a mutual commitment to a shared life as a married couple to the exclusion of all others, that the relationship was genuine and continuing and that they lived together or did not live separately and apart on a permanent basis, as required pursuant to s.5F of the Act.

11. Therefore the applicant does not meet cl.820.211 (2) (a).

12. Mr Nguyen claims the relationship with Ms Do has ceased, and that he has been the victim of family violence. However, given the Tribunal has found that the requirements of cl.820.211 were not met at the time of the visa application, it is not necessary for the Tribunal to consider these further issues, including whether Mr Nugyen can be taken to have suffered family violence, or whether any of the other two exceptions to clause 820.211 continuing to be met at the time of decision, are satisfied.

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

    DECISION

14. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    M. Jackson
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (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).