Nguyen (Migration)

Nguyen (Migration) [2023] AATA 3332 (22 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Van Loc Nguyen
REPRESENTATIVE:  Mr Michael Cai
CASE NUMBER:  1914860
HOME AFFAIRS REFERENCE(S):          BCC2018/3720796
MEMBER:Anne Grant
DATE:22 August 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 22 August 2023 at 2:35pm
CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – relationship with the visa applicant had ceased – evidence does not suggest that the parties have ever pooled or shared their financial resources – sponsor was not committed to any kind of exclusive or intimate personal relationship with the visa applicant – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5F, 65, 359
Migration Regulations 1994, r 1.15, Schedule 2, cl 820.211
CASES
He v MIBP [2017] FCAFC 206
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act) The delegate’s decision was made on 31 May 2019.
The applicant applied for the visa on 12 June 2018 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211 because the delegate was not satisfied that the visa applicant and sponsor were spouses or de facto partners as defined in s.5F of the Act at the time of application.
The applicant appeared before the Tribunal on 31 May 2023 to give evidence and present arguments. The hearing type was changed to a video hearing at the applicant’s request after his representative informed the Tribunal that the visa applicant now lived interstate. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The Tribunal also took evidence from the visa applicant’s Aunt, Ms Nguyen.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The first issue in the present case is whether the visa applicant and sponsor were spouses at the time they applied for the visa, (12 June 2018). If so, the Tribunal must determine whether they continued to be spouses at the time of decision or, as alleged in this case, the relationship has ceased and any of the applicable exceptions in cl 820.221 apply in the circumstances of the case. The applicant claims that this was a genuine relationship that has ceased, and has made a claim of non-judicially determined family violence, perpetrated by the sponsor.
At the time of application, the parties provided the following information to the Department in support (in addition to the application itself and their identification documents):
·Supporting declaration from the visa applicant’s Aunt, who states that they ‘met and fell in love’ on 1 April 2018 at a party at her home. She states that she believes that the relationship is continuing and genuine.
·Supporting declaration dated 9 June 2018 from the sponsor’s brother who states that he met the visa applicant (with his sister) at the train station in Marrickville on 1 April 2018. He states that the sponsor was now visiting the visa applicant a few times a month depending on work commitments. The deponent states that ‘since the party night they have been inseparable and things have definitely moved fast but he has never seen his sister so happy’, and he notes that he has a Vietnamese wife and they have welcomed the visa applicant into their family. They all love the culture and food. He adds that he believes that this is a genuine and continuing spousal relationship.
·Photographs of the parties showing ‘a day out in Sydney’ and ‘having a drink at a club in Marrickville in April 2018 and also at the sponsor’s brother’s home’
·Gym membership at Crunch Highpoint in the visa applicant’s name dated 8 June 2018.
·Receipt for engagement and wedding rings costing $190 and $420 dated 5 May 2018 and 12 May 2018 respectively.
·Photographs of marriage ceremony and group;
·Photographs of couple with the sponsor’s brother and his wife at Rose Bay said to be on Valentine’s Day 2019, and a photo celebrating a joint birthday; and undated pictures of them visiting family and friends and having a holiday break in Watson Bay with family;
·Four pay slips for the sponsor’s employment at Fresh Skin Canvas showing that salary was deposited to an account ending *5114.
·Medibank letter addressed to the visa applicant at Skyline Drive, Maribyrnong, June 2018.
·Win Energy Account addressed to visa applicant and sponsor at Skyline Drive, Maribyrnong issued 29 June 2018, 2 March 2019.
·Woolworths Rewards Card addressed to sponsor at Skyline Drive.
·Commonwealth Bank Smart Access account (number ending *792) in the joint name of the applicant and sponsor statement for the period 1 July 2018 to 30 December 2018. This statement reflects minimal deposits (in cash at branches only) and no deposits of the sponsor’s salary. Also, it reflects that the direct debit of Medibank Private accounts repeatedly overdrew or were rejected on the account from November 2018 to December 2018, and that the account had a minimal balance from October 2018. Rental payments do not appear to have been made from this account.
·Organ donor registration information from Medicare addressed to the visa applicant at Skyline Drive, 21 August 2018;
·Residential tenancy agreement between the sponsor and landlord for the property at Skyline Drive, Maribyrnong showing a monthly rental of $1782 commencing on 4 May 2018. First page of agreement only. “Tenant 2” is left blank.
·Fines Victoria final demand addressed to the sponsor at Skyline Drive.
·Sponsor’s PAYG summary year ending 30 June 2017;
On 11 December 2019, the applicant’s representative advised by email that his client had instructed him that the relationship between the applicant and sponsor had ceased on or about 12 September 2019 and that the applicant had experienced ‘significant abuse, violence and manipulation’ by the sponsor. The representative suggested that the Tribunal should consider the application by assessing the review on the basis that the exception in subclause 820.221(3) of the Migration Regulations applies. At that time, the representative stated that additional material supporting the claim and the relationship would be provided in due course.
On 3 May 2023, the visa applicant submitted;
·a Form 1410 with a statutory declaration by the visa applicant in which he declares (in summary) that the relationship ended on 11 September 2019 after their ‘final argument’. He states that prior to this, they had lived apart because he had to work to provide for her and he could only find work in Sydney. He states that the sponsor never thought the work he did was enough and made him feel that he was not enough for her. ‘Eventually’ he gave up work and returned to Melbourne to try and fix the relationship but he states that she started to treat him more poorly and her abuse really began towards him. He states that she would swear and shout at him, demean him for being a migrant that depended on her love, and that she would smash and throw things at him and around the place. He further states that when he found out she had an affair with another man, he tried to confront her about it but she blamed him for her infidelity and threatened her with more harm and abandonment so that he would be sent back to Vietnam. The applicant states that during the last argument, the sponsor hit him across his face, screamed and yelled at him and then kicked him out of the house. He claims that he received threatening phone calls from a blocked number making threats towards him and demanding he leave or go into hiding.
·Form 1410 statutory declaration and psychological report from Sandra Nguyen, clinical psychologist, dated 5 October 2020, in support of the family violence claims. Ms Nguyen states that in her opinion the visa applicant has experienced family violence perpetrated by the sponsor. Of note in this report is the psychologist’s reference that the applicant and sponsor first met on 28 March 2018 (and not 1 April 2018), and that the sponsor was aware of his visa predicament which meant that he had to depart Australia in June 2018. In other information related by the psychologist, the applicant told her that ‘after a couple of months of supporting both of them’ the sponsor became irritated and pressured him to find work, and she belittled him. The applicant returned to Sydney in October 2018 to find work with extended family. He found stable work in February 2019. The sponsor visited him in Sydney around the time of their birthdays. Over Christmas and New Year, the applicant told the psychologist that he spent time with her family in Albury. He continued to live and work in Sydney. He decided to give up his work and return to Melbourne in July 2019.
·Form 1410 statutory declaration and social work assessment report from Natalia Agus, social worker, dated 27 September 2020, in support of the family violence claims. Ms Agus states that in her opinion the visa applicant has experienced family violence perpetrated by the sponsor. In this report Ms Agus states, amongst other things, that the visa applicant told her that when confronted about her having an affair, the sponsor told the applicant that it was none of his business.
On 24 May 2023, the applicant provided the following documents to the Tribunal in support of his application for review;
·Representative’s submissions dated 22 May 2023, addressing the various criteria of the visa, including the visa applicant’s claim of family violence;
·Photographs of parties depicting everyday life, spending time with family and friends, and their wedding celebration (copy of documents already on the Department file).
At hearing, the Tribunal put to the applicant under s.359AA of the Act an allegation which had been made to the Department on 9 August 2018 (less than three months after the marriage date). The content of that allegation was read to the applicant, leaving out the identity of the person making the allegation. This allegation was contained on the department file and not subject to a non-disclosure certificate, however the person making the allegation was named despite clearly stating that they wished to remain anonymous. I explained to the applicant that I would not, in those circumstances, be naming or identifying the person who made the allegation, but I could indicate that it was someone who was known personally to the applicant and sponsor. I read out the allegation to the applicant at hearing. I told the applicant that he did not have to respond to the information and could seek time to do so.
The visa applicant chose to respond to the allegation, saying that he believes that it was probably the sponsor’s brother who made the allegation because ‘he never believed that the relationship was real and genuine’. I found this answer to be surprising and noted that the sponsor’s brother had provided a form 888 in support of the relationship. I said that while I might not be in a position to tell the applicant who made the claim, in circumstances where, as he suggested, the allegation came from someone like her brother, close to the applicant and sponsor, I asked the applicant why I would not give it more weight than an anonymous allegation, because the person would be in a position to directly be aware of the information they allege. The applicant’s representative responded that weight should not be given to allegations of this nature, particularly where an applicant does not know who has made the allegation.
The visa applicant stated that neither he nor his family paid the sponsor to marry him and apply for the visa. This and his other evidence is discussed further below under each of the relevant aspects of the relationship.
A post hearing submission was received with further copies of joint bank account statements for the period June 2018 to July 2019. In the attached submission, the applicant’s representative responded further to the information given orally at the hearing pursuant to s.359AA. The applicant denied all accusations and allegations referred to in the allegation. The relationship is stated to be genuine and continuing and only ceased in September 2019. The applicant denied paying any money to the sponsor or other arrangements for her cooperation and sponsorship.
The submission also includes the following:
In the interest of procedural fairness, we respectfully seek the Tribunal’s confirmation as to the location of these allegations and the relevant information in the file, or we respectfully request the information itself, if it is not covered by any non-disclosure certificates. If the information is to be presented as adverse and requiring comment from the Applicant, and the information is not covered by any duties or obligations of non-disclosure, we submit that it is only fair for the Applicant to have the particulars of the information in order to provide his actual comment and response.
I note that, as explained to the applicant and his representative, although the allegation is not the subject of a non-disclosure certificate, the person making the allegation specifically requested anonymity. In those circumstances, I decided that it would be inappropriate to disclose the name of the person making the allegation though I would disclose the content of the allegation to him and I also advised him that I was aware that it came from a person known to both the applicant and the sponsor. Later in the submission, the representative claims that I denied that it came from the sponsor’s brother, but this is not the case. When the applicant suggested the sponsor’s brother as a possible source and added that he never thought their relationship was genuine, I merely reiterated that I would not disclose the person who made the allegation but asked the applicant why, if it was the applicant’s brother or someone like that close to the family, shouldn’t it be given some weight? In any event, the applicant’s representative goes on to make submissions that no weight can or should be placed on the allegations because no evidence has been presented in support of them, and that the claims that the relationship was not genuine or that the visa applicant paid the sponsor for her cooperation are baseless. In conclusion, the submission states:
Once again, the Applicant denies all allegations as unfounded and baseless, so he cannot and will not provide any further comment on information that is blatantly untrue and ostensibly malicious. We reiterate that, without any further evidence substantiating the claims made against the Applicant, these allegations should be afforded no weight in the Presiding Member's consideration. In light of the same circumstances, as well as the above issues raised regarding disclosure of the information and availability within the file, the Applicant has no further comments to make on the unfounded allegations made.
I note that I had already provided the applicant with a full description of the allegations, although I appreciate that I did not give the applicant a physical copy. The only exclusions I made were identifying information.
Further submissions made urged the Tribunal to give weight to the evidence provided by the applicant, which it was submitted was sufficient evidence and information for me to proceed to make a favourable decision in respect of the application for review, and also urged me to accept that the visa applicant has suffered relevant and ‘qualifying’ family violence and to find that the visa applicant meets the criteria applying in such circumstances, or if I am not satisfied about ‘making a favourable decision as it pertains to family violence’, the matter should be referred to an independent expert for further assessment.
Given the content of the applicant’s submission, I decided to give the applicant a further, more formal opportunity to respond to the allegation under s.359A of the Act, giving him a copy of the allegation itself, but again excluding the information which identified or was capable of identifying the person making the allegation.
On 30 June 2023 I wrote to the applicant including the following information, along with a copy of the allegation itself, with only identifying information redacted:
In conducting the review, we are required by the Migration Act 1958 to invite you to
comment on or respond to certain information which we consider would, subject to
your comments or response, be the reason, or a part of the reason, for affirming the
decision under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
• At hearing, the Tribunal raised an allegation made online to the Department on 15
July 2018. A copy of that report is attached, with only the Departmental officer’s
name and the name and date of birth of the person making the allegation redacted.
This information is not subject to a non-disclosure certificate, but as indicated at
hearing, because the person stated that they wished to remain anonymous, the
Tribunal will not disclose the identity of the person making the allegation.
• However, as indicated at hearing, the Tribunal is aware that the allegation is made
by someone who is well known to both you and your sponsor, and observes that
the allegation may have more weight than an allegation which is from someone
with no obvious or described connection to the parties, because they could
reasonably be accepted to have had direct knowledge of the circumstances they
describe due to the relationship between them and the parties.
• As indicated at hearing, information contained in the allegation itself suggests that
it is made by someone well known to both you and your sponsor. The Tribunal
observes that the person making the allegation knows specific and personal
information about your sponsor and yourself, knows your English name, that your
family lives in Sydney and Vietnam, and that the marriage occurred in Sydney in
2018.
• The Tribunal considers that the allegation of a contrived relationship may have
some weight when considered with other information and evidence submitted by you and your sponsor, because it contains a credible report made by someone
clearly known to the parties.
This allegation is relevant to the issues in this review because it contradicts your
claims that your relationship with your sponsor was a genuine relationship, suggests
that the relationship was contrived for migration purposes and that your sponsor was
paid by your family to participate in the contrived relationship.
If the Tribunal were to place weight on this allegation, it may be a reason, or part of the
reason, for the Tribunal affirming the decision under review, because it may contribute
to the Tribunal finding, after it weighed that allegation with the other information and
evidence before it, that it did not accept your evidence to be truthful, and/or that you were ever in a genuine spousal relationship with your sponsor.

The letter then invites the applicant to respond or comment by 14 July 2023.
On 14 July 2023, the Tribunal received a response reiterating that the applicant denies all allegations referred to in the invitation, and that his relationship with the sponsor was at all relevant times genuine and continuing, and only ceased in September 2019. The submission observes that no new information had been provided by the Tribunal and that there was therefore no new information which the applicant could respond to. Whilst I agree, the applicant’s demand in the previous post-hearing submission for a copy of the allegation itself suggested that the applicant suspected that some information had not been disclosed when I read the allegation to the applicant at hearing (apart from identifying information.) I wanted it to be clear that this was not the case.
The submission further states that the information is rendered effectively anonymous (despite my informing him that the allegation is from someone well known to both the applicant and sponsor) because the applicant is unaware of the source. The submission suggests that even if it can be given more weight than a generic allegation, the allegations must still be carefully and reasonably considered against all other information available before the Tribunal.
In the submission, the applicant again denies all allegations that his former relationship with the sponsor was contrived for the purposes of migration or the applicant obtaining a visa. Finally, the submission urges the Tribunal to place limited weight to the issues raised by the allegation.
I have addressed my consideration of the applicant’s submissions and the weight accorded to the allegation further below.
Whether the parties were in a spouse or de facto relationship – time of application
Clause 820.211 requires that at the time the visa application was made, 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 have been the spouse of the sponsor who is an Australian permanent resident.
‘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 reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant has provided a marriage certificate which states that the applicant and sponsor married in Sydney on 26 May 2018. The applicant was aged 21 and stated that he had never been married before that date. The sponsor was aged 26 and stated that she had also not been married previously. There is no suggestion that there was any legal impediment to the marriage in this case. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).
Are the other requirements for a spouse relationship met at the time of application?
The applicant’s history of the relationship, as related in the submissions, information and evidence is as follows:
·     According to the application, the visa applicant and sponsor claim to have met at a bus stop in Sydney on 1 April 2018 when the sponsor was visiting family there. They chatted, and he later invited to a party later in the evening where he and the sponsor had feelings for each other. The applicant lived in Sydney at the time. After meeting, they exchanged numbers and claim they kept in touch.
·     The sponsor returned to Melbourne on 2 April 2018. At some point after then, the visa applicant visited the sponsor in Melbourne. On 4 May 2018, the application claimed that ‘they rented a unit in Maribyrnong together.’ Apparently, they also spoke to the sponsor’s mother ‘over the phone’ about their intention to marry and she agreed. Once the visa applicant’s parents arrived in New South Wales, they also agreed to the marriage and the parties were married on 26 May 2018.
·     At hearing, although some photographs submitted on behalf of the applicant were stated to be of them ‘out’ together in Sydney in April 2018 at Marrickville, the applicant confirmed that they were wrongly dated because the sponsor only returned to Sydney for wedding on 23 May 2018. That is, they were not together or socialising in Sydney between 2 April 2018 and 23 May 2018 as the photographs suggest.
·     Accordingly, prior to marriage, the parties had known each other for less than two months and spent only a few days in each other’s company.
·     After the marriage, it is claimed that the visa applicant moved to Victoria, though there is limited evidence that this is the case or when that occurred. In a witness statement submitted in support of the relationship, the sponsor’s brother (dated 9 June 2018) claims that his sister now travels to Sydney to visit her husband.   After considering the information and evidence overall, I am not satisfied of the date that the visa applicant purported to move to Victoria, rather than merely ‘visiting’ the sponsor at her Grandview address or allegedly moving into the Skyline address. I am not satisfied when and even if the visa applicant moved to Melbourne after the wedding with the intention of permanently living as spouses with the sponsor.
·     According to evidence reported by the psychologist and social worker in the reports they provided, the visa applicant moved back to Sydney in October 2018 to get work, and only gave up that work shortly before the claimed end of the relationship ‘to try and work on the relationship’, returning to Melbourne in June or July 2019. Accordingly, although the evidence is vague about specific dates, even if the applicant’s evidence is accepted, the applicant and sponsor appear to have shared a home for only a matter of four months in total, in a rental property rented solely by the sponsor.
·     The visa applicant claims that the relationship ‘finally’ broke down in September 2019 when he confronted the sponsor about her ‘having another boyfriend’ (as he termed it at hearing) that he discovered from looking at her Instagram account. He claims that there was an incident of physical violence at that time where she slapped him and also that she had been emotionally and verbally abusive during the relationship, contradictorily demanding he not work and that he provide financially for the sponsor.
Consideration
I turn now to considering the evidence in the context of the various aspects of the relationship, as required by regulation 1.15A:
Financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.
Although there is a joint bank account, the applicant confirmed that the sponsor’s income did not get deposited into that account. At the time of application, the sponsor stated “At the moment, he is temporarily getting support from my parents-in-law from Vietnam”. She goes on to claim that ‘we share our finance together to pay for rent, foods, electricity, petrol, shopping etc.’ In the application and at hearing the applicant confirmed that his family supported him until he got work, and not the sponsor.
At hearing the applicant gave evidence that he did not regularly put money into the joint account when he was working in New South Wales. He claimed not to really understand how to deposit money into the joint account. So he claims to have given money to his brother in law who then gave it to his wife. When I asked again if she ever gave him money, he said again that he never received any money or support from the sponsor.
Despite the claim in their application that they rented a property together, the sponsor did not place the visa applicant’s name on the lease. As noted above, and on the applicant’s own oral evidence, the sponsor did not share her income with him or financially support the applicant. At hearing, the visa applicant stated that the sponsor never gave him any support whatsoever, “not even one dollar” – a matter of some import to him - which contradicts a finding that she ever supported or shared her income with him. The documents lodged show no financial support from the sponsor to the visa applicant.
According to the information in the applicant’s statutory declaration lodged on 3 May 2023, the sponsor both denied him the right to work and then berated him for his low income when he did work. The evidence provided by the applicant claims that he moved back to Sydney so that he could earn more money, but this also caused friction between him and the sponsor. At hearing, the visa applicant stated that they bought some furniture ‘together’ but there is no evidence provided of these purchases. Bearing in mind the brevity of the relationship and time the visa applicant and sponsor lived or purported to live together in the sponsor’s rental property, I am not satisfied that there is any joint ownership of assets, joint liabilities, any pooling of resources or financial obligations of each party which are accepted by the other. Even the evidence of sharing of day-to-day expenses is underwhelming and reflects no mutual support for each other which might be expected in a married relationship.
My assessment of the financial aspects of the relationship is that it does not provide support for a finding that the parties were ever in a married relationship. I consider that the evidence does not suggest that the parties have ever pooled or shared their financial resources. Despite some references to the sponsor ‘supporting’ the visa applicant, I find that she did not ever do so. The constant demands for money that the visa applicant claims he faced from the sponsor actually suggests that her reasons for marrying him were related to a belief that she would financially benefit from doing so, as alleged in the allegation, rather than out of a genuine commitment to a spousal relationship.
Nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.
According to the evidence before me, the parties lived together in the same home for a maximum of four or five months. At the time of application, it was claimed that the visa applicant did most of the housework, cooking and vacuuming because he was not working. The sponsor did some household chores, but the visa applicant did most because he was not working. It was claimed that they did the grocery shopping together on Sundays. According to the psychologist’s report, the applicant told her that the sponsor quickly grew tired ‘of supporting him’ and demanded that he work, whilst belittling him for his ‘reliance’ on her. As noted earlier, the applicant stated at hearing that the sponsor ‘never’ supported him financially, and that she never gave him ‘one dollar’, which is more consistent with the bank documents and payslips than the information contained in the psychologist’s statement.
Given the lack of time the visa applicant and sponsor knew each other prior to marriage and the brevity of any period where the parties shared a home in this case, I find that considering the nature of the household suggests that the parties have not shared responsibility for household chores or tasks or lived together as spouses for any period which is sufficient to establish that they were in a genuine and continuing relationship. Rather, the sponsor’s conduct (as outlined by the applicant himself to the Tribunal and to the psychologist) reflects that she treated him like a ‘non contributing’ (financially) housemate who owed her something for having married him and for applying for the visa. The manner in which household chores were performed (and the fact that the rental property was never in the visa applicant’s name) actually suggests to me that he lived there as a sub-tenant or housemate, rather than as the sponsor’s partner. The fact that some of the household bills were in joint names, or that some bills were addressed to him there does not in my view add meaningful weight to them being in a genuine relationship – it suggests only that they were co- tenants for at least some period. My assessment is that consideration of the nature of the household and their separate living arrangements for lengthy periods, and the overall lack of mutual reliance on each other weighs against the relationship ever being a genuine, committed relationship.
Social aspects of the relationship – including whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.
The applicant stated at hearing that his brother in law (married to a Vietnamese lady himself) ‘never believed that the relationship was a genuine one.’ The sponsor’s brother has provided a statutory declaration in support of the relationship. In light of the applicant’s evidence, I give that supporting statement no weight in favour of the relationship being genuine.
As noted earlier, some of the photos provided in support of the relationship, showing them out together socially, purport to have been taken in April 2018. The applicant confirmed that this is in error and they were taken on the occasions when the sponsor visited the applicant after he had moved back to Sydney later in 2018. I accept that the parties have socialised together on a few occasions after they married, including with members of each other’s families but I do not consider that social contact to be extensive.
The applicant’s aunt gave evidence that she had no concerns about the relationship, and that she is sure that no money was paid to the sponsor to marry the applicant. As to how the relationship broke down, she gave evidence that her nephew told her that they had differences in lifestyles and mindset. He told her that she took any money he gave her and spent it quickly. She believes that her nephew was genuine in the relationship, he loved her truly and wished to be with her and to have children together; but there was a discrepancy between the lifestyles and cracks in the relationship emerged after that. I give the evidence of the applicant’s aunt a little weight as suggesting that the applicant and sponsor represented themselves to family as in a spousal relationship for a period after they married.
I have considered how the sponsor did not add the visa applicant to the lease on the new rental property, and that he was not even included as a co or sub-tenant. Further, the visa applicant claims that they were living separately from October 2018 ‘until he returned after the visa was refused in 2019’ (the decision of the delegate was made on 31 May 2019.) At hearing, the applicant stated that he came back to Victoria because they got the rejection and the finding that they had not supplied enough evidence about their relationship. The applicant volunteered that when he asked the sponsor for ‘more photos’, the sponsor asked him for money in return for photos.
The applicant also gave evidence that around the same time he discovered and confronted her about her having a relationship with another man. The information provided by the applicant suggests that when confronted, she told him that ‘it was none of his business’, and became physically violent with the applicant, forcing him to leave the premises. The applicant’s evidence, and the fact that the sponsor was, based on the visa applicant’s direct evidence, allegedly seeing someone else, strongly suggests to me that the sponsor was not committed to any kind of exclusive or intimate personal relationship with the visa applicant, at any stage. I consider that the evidence as a whole, including that given by the applicant himself, strongly suggests that the sponsor was never representing herself socially as being in a genuine, exclusive relationship with the applicant, apart from a few occasions after they submitted the visa application for the purpose of assisting in ‘legitimising’ the appearance of a relationship for that application.
Nature of persons' commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.
As noted above, the weight of the evidence about the sponsor’s level of commitment to the relationship (including that given directly by the applicant) strongly suggests that she was never committed to an exclusive relationship with the visa applicant. What is required is a mutual commitment between the parties, and I find that in this case the weight of the evidence does not satisfy me that the sponsor was ever genuinely committed to an exclusive relationship or to a married relationship with the applicant. In reaching that conclusion, I have taken into account the unusually short period between when the visa applicant and sponsor claim to have met and then married, the overall brevity of the claimed relationship and the limited time that they lived in the same house. I have also taken into consideration the visa applicant’s decision to move back to Sydney only a few months after the marriage, and the applicant’s evidence about her demands for money in return for supporting evidence, and the evidence suggesting that the sponsor had ‘another boyfriend’. I consider that these factors, when considered together, suggests that the sponsor did not ever see the relationship as long term or as an exclusive relationship. After having regard to the nature of the parties’ commitment to each other, I am not satisfied that the visa applicant and sponsor were ever in a genuine and committed relationship.
Other relevant factors
I have considered the nature of the allegation in this review, and have taken into consideration the visa applicant’s submissions on this issue. Ordinarily, because such claims cannot be tested or easily disproved, I would be reluctant to place significant weight on an anonymous allegation of this nature. However in this review, the allegation is surprisingly consistent with the timing of their first meeting and the speed with which they married, the brevity of the relationship, the conduct of the parties in living separately for long periods, not renting a premises in joint names, the applicant’s clear statement at hearing that the sponsor ‘never gave him even one dollar’ by means of support, and the demands for financial support made by the sponsor, on the applicant’s own evidence. In addition, I have taken into consideration the applicant’s evidence that the sponsor was seeing at least one other man for some months before he returned to Melbourne, and at hearing suggesting that one of the witnesses attesting to the genuine relationship (the applicant’s brother) actually never believed theirs was a genuine relationship. I find that I cannot dismiss the allegation out of hand in this case.

I have therefore given the allegation that this was a contrived relationship a little weight as one of the factors I have had regard to. That is, (and regardless of whether money was paid or not,) I consider that when considered with the other information and evidence, there is some plausibility behind the allegation that this is a contrived relationship to facilitate the visa applicant’s migration to Australia and that this was not a genuine married relationship from its’ inception.
Conclusion on ‘spouse’ criteria at time of application.
I have had regard to each of the various aspects of the relationship as discussed above. On the basis of those findings, I am not satisfied that the requirements of s 5F(2) are met at the time the visa application was made. I am not satisfied that the visa applicant and sponsor were ever in a genuine and continuing relationship, that they lived together as spouses or that they mutually committed to a shared life to the exclusion of others.
I have not given the allegation of a contrived relationship more weight than any other relevant factor, discussed above. In fact, I have only given it a little weight because even if I were to disregard the allegation, I find I would not be satisfied that the visa applicant and sponsor were ever in a genuine and continuing relationship. This conclusion is based on the various matters listed and discussed above, including the applicant’s own evidence regarding the sponsor’s failure to share her finances with him, the brief period that they claim to have known each other before marrying and for which they claim to have cohabited, the fact that the visa applicant is not named on the tenancy agreement and the sponsor’s reference to him being supported by his parents at the start of the marriage, her demands for financial support from him, and my assessment of the applicant’s evidence as reflecting that the sponsor was never committed to a genuine and exclusive relationship with the visa applicant.
The visa applicant was not the holder of a Subclass 771 (Transit) visa so must meet one of the requirements in subclauses 820.211(2), (5), (6), (7), (8) or (9).
I find that the visa applicant was not the spouse of the sponsor at the time of application. The applicant does not meet subclause 820.211(2) at the time of application.
I am not satisfied that the parties were ever in a genuine spousal relationship which has ceased. In any event, the applicant did not enter Australia with and has never held a subclass 300 (Prospective Marriage) visa for the purposes of marrying the sponsor. Consequently, none of the remaining subclauses (820.211(5), (6), (7), (8) or (9)) can apply in this case (which includes the exception in subclause (9), where a person held a prospective marriage visa, has married the sponsor, the relationship has ceased and the applicant has suffered family violence committed by the sponsoring partner). Accordingly, I am unable to consider the applicant’s family violence claims in considering the time of application criteria.
Neither of subclauses 820.211(2A) or (2B) are relevant in this case. The applicant does not meet cl 820.211.
Before time of decision criteria can be considered, an applicant must satisfy the time of application criteria by satisfying one of the subclauses described in cl 820.211. I have found that in this case, the visa applicant does not do so. No findings will be (or can be) made about the time of decision criteria, including any assessment of the applicant’s evidence and claims related to his being subjected to family violence by the sponsor.
For 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.
Anne Grant
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).

[2023] AATA 3332

22 August 2023

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