NGUYEN (Migration)

[2018] AATA 2731

NGUYEN (Migration) [2018] AATA 2731 (29 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Van Binh Nguyen

VISA APPLICANTS:  Mrs Thi Huong Giang Tran
Miss Tran Khanh Tran Nguyen
Miss Tran Khanh Vy Nguyen

CASE NUMBER:  1609712

DIBP REFERENCE(S):  OSF2015/071137

MEMBER:Kira Raif

DATE:29 June 2018

PLACE OF DECISION:  Sydney

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

Statement made on 29 June 2018 at 7:29am

CATCHWORDS
Migration – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – Spouse of the sponsor – No personal contact – Knowledge of relationship beyond family – Substantial financial support – No interest in applicant’s finances – Beneficiary to sponsor’s superannuation policy – Knowledge of applicant’s children’s circumstances – No step to introduce family – Use of former spouse’s address – Purpose of travel with former spouse – Inconsistent information – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 359AA
Migration Regulations 1994 (Cth), r 1.15A, Schedule 2 cls 309.211, 309.221

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 on 9 June 2016 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) is a national of Vietnam born in June 1975. She applied for the visa on 23 July 2015 on the basis of her relationship with the sponsor. The application includes her two children. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 and cl.309.221 because the delegate was not satisfied the applicant was the spouse of the sponsor. The sponsor (the review applicant) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 21 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and another witness. The review applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. At the time the application was made, 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.

5. Clauses 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.

6. ‘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).

   Are the parties validly married?

7. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The applicant provided with her application evidence of having registered her marriage with the sponsor in April 2015. The Tribunal is satisfied 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 spousal relationship met?

8. The Tribunal has had regard to all the aspects of this relationship. The Tribunal acknowledges that there is considerable documentary evidence addressing various aspects of the relationship and the Tribunal has given such evidence due regard. The Tribunal has also considered the parties’ oral evidence.

9. The Tribunal has considerable concerns about the development of this relationship. The parties’ evidence is that the review applicant travelled to Vietnam in December 2013 and met the visa applicant when he bought coffee at her shop. They saw each other once or twice during that visit and before they formed a committed relationship and made a decision to marry in late 2014. The Tribunal acknowledges the parties’ claim that there was regular telephone communication between them but the Tribunal remains concerned about their ability to form a committed relationship with virtually no personal contact between the parties.

10. The Tribunal has considered the social aspects of the relationship. There are a number of statements and photographs provided with the application and to the Tribunal. However, the review applicant’s evidence to the Tribunal is that he has not met any of the visa applicant’s friends (the Tribunal acknowledges his evidence that over 100 people attended the wedding). The review applicant claims the visa applicant has no friends and he was not introduced to any. He states that he introduced the visa applicant to one of his friends in Australia and this person gave oral evidence to the Tribunal. The Tribunal accepts that the couple have undertaken joint social activities when the review applicant visits Vietnam and the Tribunal accepts others are aware of the relationship, including those who provided statements with the application and to the Tribunal, however, the Tribunal is not satisfied the relationship has been meaningfully declared to people outside the immediate family. The Tribunal is not satisfied the couple represent themselves to others as being in a genuine relationship. The Tribunal is not satisfied they plan and undertake joint social activities. The Tribunal is not satisfied that beyond close family, the relationship is known to others.

11. The Tribunal has considered the financial aspects of the relationship. There is evidence of significant financial transfers between the review applicant and the visa applicant. The primary decision record refers to transfers of about $15,000 in a year between April 2015 and March 2016 and the review applicant provided to the Tribunal evidence of additional transfers. The review applicant explained that these funds go towards the tuition fees of the secondary visa applicants but the Tribunal is not satisfied such substantial amounts are needed to cover the children’s schooling. The review applicant told the Tribunal that he did not know if the funds were being used for anything else. He also told the Tribunal that in 2016 he sent money to the visa applicant to cover his father’s funeral expenses and it was easier to send the funds through the visa applicant. The visa applicant’s evidence to the Tribunal is that about $6,000 of the transferred amounts was for the review applicant’s family and not for the visa applicant.

12. The Tribunal accepts that the review applicant has been providing financial support to the visa applicants. However, he appeared to have little knowledge about the visa applicant’s financial circumstances. He did not know whether the visa applicant would have any savings to bring to Australia or how much her business is worth.  He did not know what the children’s tuition fees were, despite claiming his funds go towards the tuition fees. The Tribunal has formed the view that the review applicant has no interest in the visa applicant’s financial affairs. At best, he sends money but takes no interest in the visa applicant’s finances. The Tribunal has formed the view that the couple have not had a meaningful conversation about their financial arrangements or pooling their resources. The Tribunal is not satisfied they made any financial plans for their future together.

13. There is no evidence that the couple have joint ownership of assets or joint liabilities, although the Tribunal acknowledges that the visa applicant is nominated as a beneficiary on the sponsor’s superannuation policy.  The Tribunal is not satisfied they share day to day household expenses or owe any legal obligations towards each other. The Tribunal accepts there is substantial financial support being provided by the review applicant to the visa applicant but the Tribunal has formed the view that the review applicant and the visa applicant have not had any meaningful conversations about their finances.

14. The review applicant made several trips to Vietnam and provided to the Tribunal evidence of his registration there. The Tribunal accepts that during these visits, the parties live together and share the household. The review applicant’s evidence to the Tribunal is that he sometimes helped with cooking and housework. The Tribunal is prepared to accept that he has done that.

15. The Tribunal has considerable concerns about the review applicant’s relationship with the visa applicant’s children because the Tribunal has formed the view that the review applicant has little knowledge about them and, more problematically, no interest. For example, the review applicant did not know the institution the eldest daughter was attending. The review applicant told the Tribunal the eldest daughter was studying economic management while the visa applicant said she was studying law.  While the review applicant said the daughter would continue with her studies in Australia, he did not know what study she could do here and said he has not made any inquiries because he is too busy. The review applicant also did not know which school the younger child attends or what she was interested in doing when she completes her schooling later this year.

16. The review applicant’s evidence to the Tribunal is that he lived with the visa applicant during his visits to Vietnam and the children lived with them as well. However, the review applicant was unable to explain what their interests were, only saying that their mother forces them to study. The review applicant said that their conversations were limited to ‘hello’ and ‘how was your day’. The Tribunal has formed the view that the review applicant has no interest in the visa applicant’s children. In the Tribunal’s view, that is strong evidence that the parties lack mutual commitment to the relationship and do not view it as a long term one.

17. The review applicant told the Tribunal that he informed his children about the new marriage and they are supportive. However, he also said his children have not had any contact with his wife or her children even though he hopes it will happen in the future. (The visa applicant’s evidence to the Tribunal is that she did speak to one of the daughters.) The parties do not appear to have taken many steps to introduce the visa applicants to the sponsor’s family in Australia or to introduce the children to each other and although the Tribunal acknowledges the evidence that there may be language limitations, the Tribunal is of the view that the review applicant could have easily acted as an interpreter if he did wish to bring the families together.

18. The relationship has been in existence for about four years. The Tribunal accepts that the review applicant has made several trips to Vietnam and the couple has spent time together, although the amount of time was not necessarily lengthy. The Tribunal has formed the view that the review applicant has little interest in the visa applicants. As noted elsewhere, he does not appear to have developed a meaningful relationship with the visa applicant’s children and the Tribunal has formed the view that they have not discussed important aspects of the relationship or their future together. The Tribunal is not satisfied the parties have any joint responsibilities for the care and support of children.

19. The Tribunal questioned the review applicant about the overseas trips he made with his former spouse. The review applicant told the Tribunal that they maintained contact for the sake of the children and remained friends, even though there was no love between them. The review applicant said that they travelled to visit a temple in Indonesia in March 2014 and he confirmed the information in the primary decision record that he has travelled to Vietnam with his ex-wife on several occasions since 2012. The review applicant said his mother was not well and was upset about the breakdown of the marriage, so they travelled together. The review applicant said he never told his mother about the divorce until he introduced the visa applicant to his mother. The review applicant’s evidence suggests that he continued to represent himself to others as being in a relationship with his ex-wife many years after the claimed breakdown of that relationship.

20. The review applicant also told the Tribunal that he used the same address as his ex-wife on Incoming Passenger Cards (IPCs) because of ‘convenience’. The Tribunal considers it odd, given the review applicant’s claim that he has not lived with his ex-wife since 2001. It is unclear why it would have been more convenient to give the same address as his ex-wife on IPCs. Doing so suggests the review applicant was being untruthful in his dealings with Immigration.

21. The visa applicant’s evidence concerning the review applicant’s relationship with his ex-wife is significant. Her evidence to the Tribunal is that although the sponsor made several trips to Vietnam with his ex-wife, this was ‘accidental’ and they did not plan to travel together. The visa applicant said that her husband told her they were not travelling together but met by accident. This differs substantially from the review applicant’s evidence to the Tribunal when he said he did travel with his ex-wife together specifically to visit his mother because he did not want to tell his mother about the divorce.  The visa applicant’s evidence is problematic because it suggests the review applicant was being untruthful in his conversations with the visa applicant.

22. The Tribunal questioned the parties about the visa applicant’s previous marriage. The review applicant was unsure when the visa applicant applied for divorce. He initially suggested that she applied for the divorce before she met him but later thought that she may have applied for divorce as a result of their relationship (that is, after they met). The review applicant told the Tribunal he knew little about the visa applicant’s first marriage. He did not know when they separated. The visa applicant’s evidence to the Tribunal is that she applied for divorce around mid-2014 and it took about a month to arrange divorce. The visa applicant explained that she applied for divorce at that time because she met the sponsor and was thinking about the possibility of a relationship with him, which is not consistent with the review applicant’s evidence that she may have applied for divorce before they met. The Tribunal is mindful that by mid-2014 when the divorce application was filed, the parties claim to have been in regular communication and the review applicant may be expected to be aware of the visa applicant’s divorce application and her motivations in making that application.

23. There were a number of other inconsistencies in the parties’ oral evidence that the Tribunal considers to be problematic. These were discussed with the review applicant pursuant to s.359AA of the Act:

    a.    The review applicant told the Tribunal that during his first visit in December 2013 he saw the visa applicant once in her shop and all other contact was by telephone. The visa applicant, in her written statement submitted with the application and in her oral evidence to the Tribunal, states that he visited her store again to buy things before his return to Australia.

    b.    The Tribunal questioned the parties about the review applicant’s current and past employment. The review applicant referred to his current job and two previous jobs, which he held for one year and 10 years respectively.  The visa applicant referred to only one previous job and she seemed unaware of the second job.

    c.    The review applicant told the Tribunal that the arrangements for the marriage registration were made after he travelled to Vietnam in December 2014. The visa applicant said the arrangements were made before the review applicant travelled to Vietnam.

24. The Tribunal sought the review applicant’s comments or response to these issues in accordance with s. 359AA of the Act.

25. The Tribunal questioned the parties about their plans for the future. Both provided answers that were vague and uninformative. The review applicant told the Tribunal that the visa applicant could look for a job in a Vietnamese restaurant but he has not made any inquiries about it. The visa applicant said she will look for any ‘suitable’ job and appeared uncertain as to what that job might be. She ultimately said that she could do any work in the sponsor’s factory. This discrepancy, together with the review applicant’s lack of any inquiries about the children’s study opportunities in Australia, suggests to the Tribunal that the parties have not discussed their future together. The Tribunal is not satisfied they view the relationship as a long term one or that they are mutually committed to it. Despite the relationship being in existence for about four years, the Tribunal is not satisfied the couple draw companionship and emotional support from each other. The Tribunal has formed the view that the review applicant takes minimal interest in the visa applicant’s family.

26. The Tribunal has considered all the circumstances of this relationship. Overall, the Tribunal is not satisfied that the applicant and sponsor have a mutual commitment to a shared life to the exclusion of others. The Tribunal is not satisfied their relationship is genuine and continuing. The Tribunal is not satisfied they live together/not separately and apart on a permanent basis. On the basis of the above the Tribunal is not satisfied that the requirements of s.5F(2) were met at the time the visa application was made and at the time of this decision. The Tribunal is not satisfied the visa applicant meets cl.309.211(2). As the parties are validly married, the visa applicant does not meet cl.309.211(2). Therefore the visa applicant does not meet cl.309.211 and cl.309.221. The secondary applicants do not meet cl. 309.321.

    Conclusion

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

    DECISION

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

    Kira Raif
    Senior Member