Nguyen (Migration) - [2024] ARTA 840

NGUYEN (MIGRATION) [2024] ARTA 840 (31 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Hong Son Nguyen
Respondent:  Minister for Home Affairs
Tribunal Number:  1923983

Tribunal:Senior Member M Bourke
Place:Melbourne
Date: 31 October 2024
Decision:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 31 October 2024 at 2:47pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing exclusive relationship – undeclared previous sponsorship of the sponsor – identity details – Departmental site visits – inconsistent evidence of residential addresses at the time of application – limited evidence of the financial pooling and social aspects – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958, ss 5, 65, 359
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.15
CASES
He v MIBP [2017] FCAFC 206
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 August 2019 to refuse to grant the visa applicant a Partner (Temporary) (Class UK) Subclass 820 visa under s.65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 24 August 2016, on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant, in this case the review applicant. Other members of the family unit, if any, who are applicants for the visa, need satisfy only secondary criteria.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(a) because the delegate was not satisfied the visa applicant and the sponsor were in a genuine spousal or de facto relationship.
The applicant appeared before the Tribunal on 28 October 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Ms Thi My Do, and the sponsor’s son Mr Phuong Tu Do. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
SPOUSE/DE FACTO (cl.820.211(2)(a), cl.820.221)
The issue in the present case is whether the applicant and the sponsor are in a genuine spousal relationship at the time of application, and continue to be in a genuine spousal relationship at the time of decision, within the meaning of s.5F(2) of the Act. Cl.820.211(2)(a) and cl.820.221 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. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.
Spouse is defined in s.5F(2) of the Act which provides that a person is in a spousal relationship to another person to whom they are validly married and have a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship is genuine and continuing, and the couple lived together, and do not live separately and apart, on a permanent basis.
In forming an opinion whether the applicant and sponsor are in a spousal relationship, consideration must be given to all 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 reg.1.15A(3). Each of the specific matters contained in reg.1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.
History of the review
The Department decision record is dated 22 August 2019, and the application for review was lodged online on 28 August 2019. The review was initially constituted to another member, who directed correspondence be sent to the applicant on 10 February 2023, 17 February 2023 and two letters on 22 February 2023. All the correspondence invited the applicant to respond and all required responses on a certain date. The applicant had provided a response on 8 March 2023 to an invitation dated 22 February 2023 sent pursuant to s.359A of the Act. This response was received by the correct due date. The applicant provided a response on 9 March 2023 in response to an invitation dated 17 February 2023 sent pursuant to s.359(2) of the Act. This response was not received by the due date. The applicant was advised by the Tribunal on 10 March 2023 that the hearing had been cancelled because the response was received after the due date and the applicant had lost his entitlement to a hearing.
The review was subsequently reconstituted to another member due to circumstances beyond the Tribunal’s control, in September 2024. The applicant had not received any further information from the Tribunal between March 2023 and September 2024 about the progress of the review. The current Tribunal is of the view that the applicant had received several items of correspondence from the Tribunal, and had been invited to provide responses due on different dates, and had provided responses to the invitations pursuant to s.359A and s.359(2). The Tribunal is of the view that the applicant had provided responses and engaged with the Tribunal. The Tribunal is satisfied that it was reasonable and proper to conclude that the applicant had provided the information he was invited to provide, and had provided the information and provided responses in a proper manner for the Tribunal to consider. In these circumstances the Tribunal determined that the applicant had not lost his entitlement to a hearing. The applicant was advised by letter dated 23 September 2024 that the applicant would be invited to a further hearing and was invited to provide any further submissions.
Department’s decision record
The applicant provided the Tribunal with a copy of the Department’s decision record dated 22 August 2019 attached to the submissions provided by his representative to the Tribunal on 9 March 2023. In the Department’s decision record the delegate recorded the following relationships and sponsorships. John Nguyen sponsored the sponsor in this review, Thi My Do, for a prospective marriage visa. This relationship and this sponsorship, and the fact the sponsor first came to Australia on a prospective marriage visa was not declared in the application form or the sponsorship form in the application for the visa which is the subject of this review.
The sponsor did not marry John Nguyen after her arrival in Australia. She married John Nguyen’s older brother Minh Hien Nguyen, and sponsored him in a partner visa application in 2000. The sponsor and Minh Hien Nguyen divorced in 2003. The sponsor, her husband Minh Hien Nguyen and John Nguyen lived at the same address. After the sponsor and Minh Hien Nguyen were divorced, the sponsor and her ex-husband continued to live with John Nguyen at the same address. When Minh Hien Nguyen remarried he continued to live with his new wife at the same address with the sponsor, Thi My Do and John Nguyen. Minh Hien Nguyen and his new wife moved out of the property, and the sponsor Thi My Do and John Nguyen continued to reside at the address.
The review applicant divorced his wife Thi Ba Lam on 2 April 2015. John Nguyen is now married to Thi Ba Lam, and has sponsored her in a partner visa. The applicant is married to the sponsor.
At the commencement of the hearing the applicant stated that all the relationship information set out by the delegate in the Department decision record dated 22 August 2019 concerning himself, the sponsor, his ex-wife, John Nguyen, and John’s older brother is correct.
The applicant confirmed in answer to a question from the tribunal that his ex-wife is married to his current wife’s ex-fiancé and sponsor. The applicant stated that his current wife (the sponsor) did not marry her fiancé John Nguyen, but married his older brother.
At the commencement of the hearing the applicant was asked in relation to other information contained in the Department’s decision record, and also contained in submissions provided by the applicant to the Department and the Tribunal. The applicant stated that in the application and sponsorship forms they did not declare the sponsor had been previously engaged and did not declare that she was sponsored to Australia by John Nguyen as part of prospective marriage visa. The applicant stated that he had subsequently confirmed the information of the sponsor’s engagement with John Nguyen, and her sponsorship by John Nguyen in the prospective marriage visa application with the Department in 2019.
At the commencement of the hearing the applicant stated that he did not disclose in the Form 80 that the sponsor had two other names as he did not know this information at the time he provided that form.
Nondisclosure certificates
There were two nondisclosure certificates issued on the Departments file, both dated 10 September 2019. Copies of the certificates were provided to the applicant by the Tribunal on 22 February 2023. There was no submission received from the applicant as to the validity of the certificates. In the letter to the applicant dated 23 September 2024 the Tribunal noted that the applicant had previously been provided with a copy of the two nondisclosure certificates issued on the Department file. In the hearing the representative confirmed the applicant had received copies of the nondisclosure certificates, and did not challenge the validity of the two certificates.
The Tribunal is satisfied that the certificate issued pursuant to s.375A dated 10 September 2019 is valid as it is signed, dated, records why disclosure of the information would be contrary to the public interest, and properly engages s.375A of the Act. This certificate identifies three separate groups of folios to which the certificate applies.
Folios 28 to 29 contain information in case notes of assessment of the applicant’s divorce from his previous wife and correspondence to the applicant returning documents. The applicant has provided evidence to the Tribunal that he had divorced his first wife, and therefore this information did not have to be provided to the applicant by the Tribunal. Further the correspondence to the applicant returning the documents is not relevant to the review.
Folios 41 to 44 contain information of a referral by the Department for assessment as to whether the relationship between the applicant and the sponsor is genuine or contrived. This referral includes suspicion relating to third parties. The Tribunal discussed with the applicant that it would not consider the evidence relating to these additional parties, and would confine its assessment of the evidence directly relating to the applicant and the sponsor, and the information of connected relationships identified in the Department’s decision record outlined in paragraphs 13 and 14 above. The Tribunal discussed it considered it would be more fair to contain its assessment and analysis of evidence of direct information relating to the applicant and the sponsor, and not engage in hypothetical assessment of additional persons.
Folios 60 - 67 contain information that is relevant to the review, but the relevant information is recorded in the Department’s decision record, a copy of which was provided to the Tribunal by the applicant.
For all the above reasons the Tribunal determined that the gist of the information to which the s.375A certificate applied did not need to be disclosed to the applicant, because it had been provided to the Tribunal by the applicant, or alternatively was not relevant to the issues to be determined in the review, and the Tribunal would not take this information into consideration in its assessment in this review.
The Tribunal is satisfied that the certificate issued pursuant to s.376 of the Act dated 10 September 2019, is valid as it is signed and dated, and records the reason why disclosure of the information would be contrary to the public interest, and properly engages s.376 of the Act.
Folios 32 – 40 contain information in relation to the sponsor’s two changes of name. The applicant had provided information to the Tribunal in relation to the sponsor changing her name in 2001 and in 2003 before returning to using the name she was given after she was born. As the applicant has provided this information to the Tribunal, the Tribunal is not required to disclose the documents in relation to the evidence of the sponsor’s changes of her name.
Folios 50 – 53 contain information of recordings by departmental offices during the home visit in 2018 of site observations and interview notes. This information is relevant to the review and was put to the applicant pursuant to procedural fairness requirements in the hearing, under the Administrative Review Tribunal Act 2024.
The Tribunal put the following particulars to the applicant. To put the gist of the information to the applicant required the Tribunal to provide some detail of the information from the site observations and interview notes of the departmental offices.
On 3 October 2018 at 7.30pm the sponsor’s son invited departmental offices into the home at 77 W St, and showed the offices the bedroom. On the bedside table there was a letter addressed to “John”, whom the sponsor’s son said was his uncle. The sponsor’s son called his parents and said there were 15 minutes away. The officers returned to77 W St, at 8:23pm, the sponsor’s son said they were busy. One of the officers spoke to the sponsor on the phone and she advised she was at the casino and did not know where the applicant was in the casino. The officers left.
On 3 October 2018 at 8:36pm the officers went to 74 G Pde, and spoke to the applicant’s ex-wife through an interpreter. She stated that John Nguyen, her husband was at work at Australia Post. There was no other work uniform in the house and she stated he only had one uniform. She stated she had never met the sponsor. She was shown a photo where both she and the sponsor appeared to be at the same party and she stated she had been at that party.
On 8 October 2018 at 10.30am, the officers returned to 77 W St, the applicant was home, an interpreter was arranged, and the applicant allowed the officers in. The applicant showed the officers the bedroom he stated he shared with the sponsor. On the left-hand bedside table there was a medical prescription made out to John, whom the applicant stated was his wife’s ex-husband’s brother. The applicant stated on 3 October he had been out with his wife and been with her at all times in the casino. The applicant stated to the officers that his wife (the sponsor) and his ex-wife had been friends for a long time and met before his marriage to the sponsor. The applicant stated that he had not seen John Nguyen for a long time and had no idea why the sponsor had John Nguyen’s prescription. There were no photos in the house except the ones that had previously been provided to the Department of the applicant and the sponsor.
On 8 October 2018 the departmental officers had a telephone conversation with the sponsor who stated she had not seen John Nguyen for a long time but fixed his uniform a few months ago. She stated she was unaware of the medical prescription and maybe John Nguyen had gone in and put it on her bedside table. The sponsor stated she knew the applicant’s ex-wife through her family and knew her before she had married the applicant.
On 8 October 2018 at 12.32pm, the officers returned to 74 G Pde; no one was home. The departmental officers were unable to contact the applicant’s ex-wife. The departmental officer spoke to John Nguyen, who stated he could not recall the medical prescription but sometimes he gives the sponsor medicine to buy as he is too busy. He could not explain why he did not give these scripts to his wife.
The Tribunal explained to the applicant in the hearing that this information is relevant as it includes inconsistent evidence about whether the sponsor and the applicant’s ex-wife knew each other, it includes inconsistent evidence about whether the applicant and the sponsor were together at the casino on 3 October 2018, and it includes inconsistent evidence in relation to the existence of the medical prescription in the name of John Nguyen and letter addressed to John Nguyen in the bedroom claimed to be the marital bedroom of the applicant and sponsor. The Tribunal explained this was relevant because the evidence indicates that all the persons involved, the applicant, the sponsor, the sponsor’s son, the applicant’s ex-wife, and John Nguyen, may be involved in presenting unreliable evidence about the application for the visa. The evidence of all these people involved may not be reliable. Further the Tribunal explained that the evidence is relevant as it indicates the relationship between the applicant and the sponsor may not be a genuine relationship.
The Tribunal advised the applicant that if it relied on the evidence in the departmental site observation and interview notes it may not be satisfied that the applicant and sponsor have a mutual commitment to a shared life as a married couple to the exclusion of all others, it may not be satisfied that the applicant and sponsor are in a genuine and continuing relationship, and therefore the Tribunal may find that the applicant and sponsor are in a contrived relationship and not in a spousal relationship within the meaning of s.5F(2) of the Act. The Tribunal advised that if it was not satisfied that the applicant and the sponsor were in a spousal relationship within the meaning of s.5F(2), this would be a reason or part of the reason for affirming the decision under review.
The applicant advised that he understood the particulars of the information, its relevance to the review and the consequences if the tribunal relied on the information. The Tribunal granted a short adjournment to allow the applicant to consult with his representative.
In his response to the information put to the applicant in the hearing in relation to the information to which the s.376 nondisclosure certificate applied, the applicant stated that he had been with his wife at the casino, but did not like playing games and had wandered along the riverbank. The applicant stated he was the only one present in the morning of the second visit and he showed the officers where particular items in the house were located. The applicant stated he was asked questions by the Departmental officers about how to get to his wife’s work and whose car was parked in the yard before they left.
The Tribunal finds that the information to which the certificate applies suggests that the applicant’s ex-wife and the applicant and the sponsor have provided different information about whether the applicant’s ex-wife and the sponsor know each other. The applicant and the sponsor both gave evidence in the hearing that the applicant’s ex-wife and the sponsor know each other well and the evidence of the applicant’s ex-wife that they had never met was not correct.
The Tribunal finds that the information that the applicant and the sponsor of the casino together on 3 October 2018, but the applicant was unable to be contacted is dubious. There is no explanation provided as to why the applicant was unable to be contacted by phone.
The Tribunal finds that the information to which the certificate applies indicates that John Nguyen had ongoing contact and communication with the sponsor, and the applicant and sponsor and John Nguyen provided inconsistent evidence about this. The information of the letter addressed to John found in the sponsor’s bedroom on 3 October 2018, and the script in the name of John Nguyen located in the bedroom of the sponsor on 8 October 2018 indicates an ongoing communication and relationship between the sponsor and John Nguyen, and there is inconsistent evidence about the information. This is discussed in detail later in this decision record.

The Tribunal has considered the information of the departmental officers in the site observation and the interview notes, and the applicant’s responses and finds that the information and evidence provided by the applicant to the tribunal in relation to the application for the visa and the issues to be determined in this review, may not be reliable.
Oral evidence in the hearing
The applicant provided the Tribunal with a copy of the Victorian registered marriage certificate confirming the applicant and sponsor were married on 20 August 2016 at Abbotsford. The applicant and the sponsor both stated they currently lived at 77 W St, a property owned by the sponsor’s son. The applicant stated they moved there in 2016. The applicant stated that previously they had lived together at the sponsor’s rented property at 53 E St. In answer to a question from the Tribunal, the applicant stated that they moved there after their marriage. The applicant stated that the sponsor son bought the house and they all moved into the house together. He stated he was absolutely certain that they did not live at 77 W St before their marriage.
On the Department files there were Centrelink records relating to the sponsor which recorded that she changed her residential address with Centrelink on 10 February 2016 to 77 W St. This information was not subject to a non disclosure certificate. The Tribunal put this information to the applicant pursuant to the s.359A process. The Tribunal explained that the sponsor had changed her recorded address with Centrelink on 10 February 2016 which was six months before the applicant and sponsor’s marriage. The Tribunal explained that this suggests the applicant and sponsor and the sponsor’s son and family did not all move to 77 W St after their marriage, and that they were not all living together at the property at 53 E St prior to the marriage, as the applicant claimed. The Tribunal explained that this evidence was relevant as both things could not be true at the same time: – the applicant and sponsor cannot have moved to the property at 77 W St after the marriage in August 2016, and the sponsor had moved to 77 W St in February 2016. The Tribunal explained that if the tribunal relies on the information the sponsor had provided to Centrelink, the tribunal might find the evidence the applicant was giving was not reliable, and that the Tribunal may not be satisfied that the applicant and sponsor lived together, and not separately apart, on a permanent basis. The Tribunal advised that if it was not satisfied the applicant and sponsor resided together on a permanent basis, it would not be satisfied that the applicant and sponsor were in a spousal relationship within the meaning of s.5F(2), and this would be the reason or part of the reason for affirming the decision under review.
The applicant stated that he understood the information, its relevance to the review, and the consequences if the Tribunal relied on the information. The applicant responded to the information by stating that he married the sponsor on 20 August 2016 in Richmond. (The Tribunal accepts that Richmond is a neighbouring suburb to Abbotsford). The applicant stated that before they were married they lived at the property the sponsor rented at 53 E St near the Footscray hospital. The applicant stated that after they married they moved in to the property at 77 W St, owned by the son of the sponsor and his wife. The applicant stated it was a long time ago. He stated that they have stayed together since he made his proposal in April 2016. The applicant stated they have lived together since they became engaged on 2 April 2016. He stated he does not remember what month they moved into the place at 77 W St. The applicant stated they became engaged on 2 April 2016. The applicant stated the sponsor’s son told him they moved in to 77 W St at the end of 2016.
The sponsor in her evidence stated they are currently living at 77 W St, and were residing at 53 E St at the time of their marriage on 20 August 2016. The sponsor stated she was sure they moved to 77 W St after their marriage. The sponsor stated the property at 77 W St was bought by her son and his wife, they cleaned it and then moved in. The sponsor stated there was no time that it was vacant after the purchase. The Tribunal discussed with the sponsor the Centrelink records that recorded she had changed her residential address to 77 W St on 10 February 2016, six months before her marriage. The sponsor stated it was a long time ago. The sponsor stated she believed they moved to the house at 77 W St after their marriage, and at the end of 2016.
The Tribunal has assessed the evidence of the residential addresses of the applicant and the sponsor at the time of their marriage (20 August 2016), and at the time of application (24 August 2016), and is not satisfied that it can rely on the evidence that the parties were residing together at the same residential address at the time of application, as they claim.
The tribunal considers that although the applicant are giving evidence about dates eight years ago, the milestone of their marriage is a significant life event which should be sufficient for the parties to recollect whether they were residing at the sponsor’s son’s home at the time of the wedding, or moved to the sponsor’s son’s home after the wedding.
The Tribunal has considered the evidence of the Centrelink records that the sponsor recorded her residential address on 10 February 2016 as 77 W St. The Tribunal has considered the evidence of the sponsor that after her son purchased the home at 77 W St, it was not left vacant, but they moved in after cleaning it. The applicant stated that he proposed on 2 April 2016, and after they were engaged on 2 April 2016, he and the sponsor lived at her rental property at 53 E St. The applicant and sponsor stated that they did not live at 77 W St until after their marriage on 20 August 2026; they were both certain of this, and confirmed it after being asked about the sponsor’s Centrelink records.
The Tribunal is satisfied based on the Centrelink records that the sponsor was residing at 77 W St in February 2016, and did not move into the property at 77 W St after the date of the marriage to the applicant in August 2016. The Tribunal finds that the evidence that the applicant and sponsor were residing together at the sponsor’s rental property at 53 E St up until their marriage on 20 August 2016, and subsequently moved together with the sponsor son into the property at 77 W St is not reliable or credible. The Tribunal finds that the applicant and sponsor were not residing together at the time of the engagement date, 2 April 2016, or at the time of the marriage, 20 August 2016, or at the time of application, 24 August 2016. The Tribunal finds that the evidence of the applicant and the sponsor about their residential address and residing together as a couple is not reliable.
The sponsor stated that the letter and the script in the name of John Nguyen had been in her bedside table. The sponsor stated she found this when she was repairing his clothes for him. The Tribunal discussed with the sponsor that the applicant had said he did not have any knowledge of how the letter and the script in John Nguyen’s name were in the bedroom. The Tribunal discussed with the sponsor that John Nguyen had reportedly told the departmental officers that he gave the script to the sponsor for her to get the medicine on his behalf because he was too busy. The sponsor responded that the letter and the script had been in the pocket of the clothes she was repairing for John Nguyen, and had only been there for a few days. The Tribunal discussed that John Nguyen had told the departmental officers that he had not seen the sponsor for a long time but that he had asked her to get the medicine. The Tribunal asked the sponsor whether she was indicating that John Nguyen had not told the truth to the departmental officers, as she stated she only had the script for a few days, and John Nguyen reportedly told the departmental officers that he had not seen her for a long time. The sponsor stated that John Nguyen had asked her to obtain the medicine on his behalf. The sponsor stated she did not have the time and she does not remember how long since she had seen him. The sponsor stated it was normal to take the script out of his work pocket and after finishing the repairs she would have put it back in the pocket. The tribunal clarified with the sponsor whether her evidence was that John Nguyen had asked her to get the medicine on his behalf. The sponsor stated that he had asked her to get the medicine but she did not have to buy it for him. The sponsor stated this was the only occasion that John Nguyen had requested her to purchase medicine.
The Tribunal finds that the evidence of the sponsor in relation to the explanation for the script and the letter in the name of John Nguyen found in the bedroom where she slept in her son’s home at 77 W St at the time of the two home visits by the departmental officers on 3 October 2018 and 8 October 2018 is not credible or reliable. The sponsor’s evidence changed in reaction to hearing the explanations offered by John Nguyen. The Tribunal does not accept that the sponsor and John Nguyen had little contact, yet John Nguyen had asked the sponsor to fill the script for him, and/or that the script was in the sponsor’s bedside table because she had been repairing his clothes. The Tribunal accepts the notes taken by the departmental officers of the conversations with the sponsor and with John Nguyen in October 2018 are reliable. The tribunal finds the explanations given to the Departmental officers by the sponsor and John Nguyen are not consistent or plausible. The evidence of the sponsor in the hearing was not reliable or credible. The Tribunal finds that the inconsistent evidence indicates the possibility that in fact John Nguyen resided or stayed at those premises with the sponsor, or had an ongoing close relationship or communications with the sponsor.
The Tribunal has taken into account that the applicant was present at 77 W St on 8 October 2018 when the departmental officers attended. The Tribunal gives this evidence weight, but finds the presence of the applicant in the sponsor’s son’s home at the time of an unannounced visit by the departmental officers, does not overcome the evidence of the script belonging to the sponsor’s previous sponsor, fiancé and long time housemate in her bedroom, particularly in the circumstances of the inconsistent evidence around this fact. The Tribunal has noted the Departmental officers had visited five days previously when the applicant and sponsor were not present at the address. The presence of the applicant on 8 October 2018 is not sufficient evidence to satisfy the Tribunal that the applicant resided at 77 W St with the sponsor at that time.
The sponsor’s son gave evidence at the hearing that his mother was not well and relied on taking a lot of medicine. The sponsor’s son gave evidence of his wish to continue the relationship between his children and their grandparents. The Tribunal asked the sponsor son about its concerns the relationship between the applicant and sponsor may not be genuine. The sponsor’s son stated that the past is the past, and that the applicant is there when his mother is older and when he and his children need him.
The Tribunal has considered the evidence of the sponsor’s son and accepts that at the current time the applicant provide some support for the sponsor and her family.
Are the parties in a spousal relationship?
Based on the divorce documents provided, the tribunal is satisfied the applicant and the sponsor are both divorced. Based on the registered marriage certificate the Tribunal is satisfied that the applicant and the sponsor were married on 20 August 2016 in Abbotsford, Victoria. The Tribunal is satisfied the applicant and sponsor are validly married for the purposes of meeting the requirements of s.5F(2)(a).
Prior to recording the findings of the circumstances of the relationship, it is important to note that the tribunal is not satisfied the parties were residing together in the same household at the time of application, namely 24 August 2016. The Tribunal has considered the information provided by the sponsor to Centrelink about her change of her residential address on 10 February 2016 which is inconsistent with the evidence of the applicant and sponsor. The Tribunal has considered the information about the sponsor’s previous sponsor currently sponsoring the applicant’s ex-wife in a partner application which suggests the possibility of a planned or systematic visa sponsorship strategy. The Tribunal has considered the site observations and interview notes in relation to the home visit in 2018 which indicate the applicant and sponsor were not residing together, and further that unreliable and inconsistent evidence was provided about their relationship. The tribunal has considered the inconsistent evidence in the hearing.
The Tribunal has carefully balanced the positive and consistent evidence of the relationship with the inconsistent evidence of the relationship. The Tribunal has carefully considered the overall information provided about the relationship, and assessed the written and oral evidence before it.
The Tribunal has considered the parties have provided statements of the relationship by the applicant and the sponsor, extensive photographs, a statutory declaration from the sponsor’s son and also from a friend of the parties, utility bills in the name of the sponsor at 77 W St, correspondence addressed to both the applicant and the sponsor at that address, joint bank statements over a period of time, tax return documents declaring a spouse, and a general information letter from the sponsor’s superannuation company.
The Tribunal is satisfied that the parties are well known to each other, and the photographic evidence indicates the parties have spent time together in several activities. The Tribunal accepts that the parties spend time with the sponsor’s grandchildren.
The Tribunal is not satisfied that the documentary and photographic evidence provided overcomes the inconsistent evidence and unreliable evidence provided in in the review.
Financial aspects of the relationship: – the Tribunal is satisfied that the parties do not jointly own real estate or other major assets. The Tribunal is satisfied that the parties do not have any joint liabilities. The Tribunal is satisfied that there is no evidence that the parties pool their financial resources in relation to major financial commitments. The parties have a joint bank account since 2016. The statements provided do not record the sponsor’s Centrelink payment. The joint bank account is not sufficient evidence to demonstrate the parties pool their financial resources. The Tribunal is satisfied that there is no evidence that one person in the relationship owes any legal obligation respect of the other. The Tribunal accepts the joint bank account is a basis for sharing day-to-day household expenses.
The evidence of the financial aspects of the relationship is not sufficient to indicate that the parties met any of the requirements for a spousal relationship in s.5F(2) at the time of application.
Nature of the household: – the Tribunal is satisfied that the applicant and sponsor did not have the joint responsibility for the care and support of children at the time of application. The Tribunal is not satisfied that the applicant and sponsor were residing together, or were residing together with the sponsor’s son at 77 W St at the time of application. The Tribunal is not satisfied for the reasons set out above that the applicant and sponsor lived together as a married couple at the time of application. The Tribunal is not satisfied there is sufficient evidence or reliable evidence that the applicant and the sponsor resided together as a married couple after the time of application. For this reason the Tribunal is also not satisfied that at the time of application the applicant and sponsor share the responsibility for housework.
The evidence of the nature of the household is not sufficient to indicate that the parties met any of the requirements for a spousal relationship in s.5F(2) at the time of application.
Social aspects of the relationship: – the tribunal is satisfied that the applicant and the sponsor have represented themselves to other people, namely the sponsor’s son, the friend of the applicant and sponsor and on their tax return documents as being married to each other. The Tribunal is satisfied that at the opinion of the sponsor’s son and the friend of the applicant and sponsor about the nature of the relationship provided in the statutory declarations was that the relationship was genuine. However the Tribunal notes when asked about the genuineness of the relationship in the hearing, the sponsor’s son stated that the “past is past”, suggesting that possibly the relationship was not genuine at the time of application. The Tribunal is satisfied that at the current time the applicant and the sponsor plan social activities around support for the sponsor’s grandchildren, including taking the younger child to activities, therapy and daycare. The tribunal is not satisfied that at the time of application the applicant and the sponsor planned and undertook joint social activities as a couple.
The evidence of the social aspects of the relationship is limited and is not sufficient to indicate that the parties met any of the requirements for a spousal relationship in s.5F(2) at the time of application.
The evidence of the nature of the persons’ commitment to each other: – the Tribunal is satisfied that the parties were married on 20 August 2016, and at the time of application, namely 24 August 2016 had been married for four days, and at the time of this decision have been married for over eight years. The Tribunal is not satisfied, for reasons stated above that at the time of application the parties were living together as a married couple. The Tribunal accepts that the applicant and the sponsor are known to each other, spend time together and provide each other with a degree of companionship and support. The Tribunal is not satisfied that the parties saw the relationship is long-term at the time of application.
The evidence of the nature of the persons’ commitment to each other is not sufficient to indicate the parties met any of the requirements for a spousal relationship in s.5F(2) at the time of application.
Conclusion: – the Tribunal has considered all the circumstances of the relationship, as set out in reg 1.15A(3), with an analysis of the written and oral evidence before it. The Tribunal has considered the evidence relevant to the time of application and for a reasonable period after the time of application, including the time of the Department home site visits in 2018. The Tribunal is not satisfied that at the time of application, the applicant and the sponsor were in a genuine or continuing relationship, or that they lived together, and not separately and apart, on a permanent basis. The Tribunal finds that the applicant and sponsor do not meet the requirements of s.5F(2)(c) or (d) at the time of application.
Accordingly the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time the visa application was made.
Therefore the applicant does not meet the requirements of cl.820.211(2)(a).
The Tribunal is satisfied that the applicant does not meet the alternative criteria in cl.820.211(7), (8) or (9) as the applicant was not the holder of a prospective marriage visa.
The reasons above the applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Date(s) of hearing: 28 October 2024
Representative for the Applicant: Dr Ngo Tung Bao (MARN: 0006620)