NGUYEN (Migration)

[2023] AATA 2641

NGUYEN (Migration) [2023] AATA 2641 (9 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr CAO CUONG NGUYEN

REPRESENTATIVE:  Mrs ANH THY TRAN (MARN: 1464382)

CASE NUMBER:  1900258

HOME AFFAIRS REFERENCE(S):          BCC2016/3385739

MEMBER:Kira Raif

DATE:9 August 2023

PLACE OF DECISION:  Sydney

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

Statement made on 09 August 2023 at 1:24pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – separate bank accounts with minimal transactions – joint utilities accounts – applicant’s minimal responsibility for the sponsor’s children – joint social activities – plans for family – credibility issues – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.15

CASES

He v MIBP [2017] FCAFC 206

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 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).

2. The applicant is a national of Vietnam, born in February 1989. He applied for the visa on 12 October 2016 on the basis of his relationship with his sponsor. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.221 because the delegate was not satisfied the applicant was the spouse of the sponsor. The applicant seeks review of the delegate’s decision.  

3. The applicant appeared before the Tribunal on 25 July 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. 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.

   Relevant law

4. At the time the application was made, 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).

5. Clauses 820.211(2)(a) and 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.

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 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) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

   Are the parties validly married?

7. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant provided with the application evidence of having registered marriage with the sponsor in Australia in September 2016. There is nothing to suggest the marriage is not valid. The Tribunal is satisfied on the evidence before it that 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?

8. The sponsor was born in Vietnam in April 1985, and became a permanent resident in Australian on 10 October 2007 on the basis of a partner visa. She was previously married between August 2004 and June 2015 and there are two children of that relationship. The applicant was born in Vietnam in February 1989 and is a national of that country. The applicant stated he had not had previous relationships.

9. The applicant stated that he met the sponsor on 15 August 2015 at a live music venue. They began dating and their relationship was cemented at the applicant’s birthday party on Brighton Le-Sands beach on 7 February 2016. They became engaged on 2 July 2016 and were married in the presence of friends on 9 September 2016. They rented a flat together after their marriage.

10. The applicant provided a volume of documentary evidence with the application and additional evidence is before the Tribunal. The Tribunal acknowledges that there is a significant amount of documentary evidence but, for the reasons set out below, the Tribunal does not consider such evidence to be persuasive. The Tribunal is mindful that  much of the written evidence can be easily obtained and it may or may not accurately reflect the parties’ circumstances. For example, receipts or rental payments in joint names may indicate that the parties pool their resources but, in the absence of corresponding bank records, that is not necessarily so. Photographs may indicate that the couple undertake joint social activities or that they had taken photographs for another purpose. Joint names on various bills or a rental ledger may show cohabitation but not necessarily as the agencies do not verify the information supplied to them.

11. In this case, the Tribunal has decided to give greater weight to the oral evidence of the parties. Generally, the Tribunal found the applicant and sponsor to be evasive in their oral evidence, the applicant’s evidence often changed in response to Tribunal’s concerns and the Tribunal has formed the view that they were not truthful in many aspects of their claims.

12. The Tribunal has considered the financial aspects of the relationship. In his evidence with the primary application the applicant stated that he and the sponsor had a joint bank account, but that due to the sponsor’s enjoyment of gambling, he managed their money and bank accounts. They were trying to save money for their future, and often made cash purchases rather than using cards. The applicant presented evidence of bank statements with different banks including copies of ANZ joint account statements from 16 October 2016 to 20 October 2016 showing one deposit on 18 October 2016 and no transactions; National Australia Bank for joint account dated 1 February 2017 to 17 February 2017 showing multiple small deposits, an account listing for several joint accounts with the Westpac bank, dated October 2016, each with minimal balances and no transactions and an account statement from the National Australia Bank for an account in the sponsor's name, addressed to the applicant dated 30 March 2018 to 1 August 2018, showing deposits for child and family support and other cash deposits, debit transactions, limited purchases of groceries and other household items, as well as rental payments.

13. In his written statement to the Tribunal dated 6 February 2023 the applicant stated that they do not currently have joined back accounts, due to the sponsor’s bad credit rating and he manages their expenses. The applicant provided additional bank statements including a letter to the sponsor regarding a new account at Suncorp dated 16 September 2019, and transaction records from an active Suncorp account in joint names dated August 2019; September 2019; and October 2019. The applicant provided to the Tribunal transaction records and statements for joint ANZ account dated between 2016 and 2022, statements from National Bank Accounts showing both parties’ names dated between February 2017 and August 2018. Evidence of the applicants Westpac bank E-saver accounts was also provided 

14. There is other evidence before the Tribunal including the applicant’s ATO statement and Tax returns identifying the sponsor as the spouse, Telstra bills in joint names and receipts for joint purchases. The sponsor’s Centrelink record shows her marital status as married.

15. When questioned about multiple bank accounts with minimal transactions, the applicant explained to the Tribunal in oral evidence that his wife was not able to operate an account due to her poor credit rating and the bank accounts were closed. The Tribunal is mindful that the various joint accounts that were provided with the application showed minimal transactions (suggesting they were not operated on a regular basis) and the applicant’s evidence is that he had to open the joint accounts in order to provide evidence to the Department. Similarly, the applicant told the Tribunal that his wife transfers small amounts from her Centrelink payments to the joint account in order to show evidence for his visa application.

16. The Tribunal does not consider that the various bank accounts and other evidence relating to the financial aspects of the relationship evidences the couple’s pooling of resources. The applicant’s evidence indicates that the couple had opened multiple accounts, which were not operational or had minimal transactions, in order to be able to present evidence of joint finances to Immigration. The Tribunal has formed the view that the evidence relating to the financial aspects was prepared solely for the purpose of presenting evidence in support of the visa application. The Tribunal gives it no weight.

17. There is little evidence concerning joint ownership of assets and joint liabilities. There is little evidence concerning any financial obligations parties owe to each other. The Tribunal is not satisfied the couple pool their resources or share daily household expenses in any meaningful way.

18. The Tribunal has considered the nature of the household. The applicant provided with the application several letters from different organisations addressed to him and the sponsor to the same address, statement from their landlords confirming cohabitation and joint rental receipts. The Tribunal accepts that the parties had notified various agencies that they live at the same address (noting, however, that many of the agencies, such as bank and utility companies would not have verified that information).

19. The Tribunal is prepared to accept that the applicant and sponsor live at the same address. Much of their evidence in relation to cohabitation was consistent, however, there were also inconsistencies in their oral evidence concerning their living arrangements. Thus,

    a.The applicant told the Tribunal that in the week before the hearing he worked two days, on Thursday and Friday. The sponsor stated that he worked 3 days in that week and his last day at work was Friday but she could not recall the other days when he worked that week.

    In his submission to the Tribunal of 8 August 2023 the applicant explains that he worked on Thursday and Friday and visited another site on Wednesday to provide an estimate and he received a deposit. The applicant states that his wife experienced difficulty articulating her responses during the hearing. The Tribunal does not accept that  explanation, noting that visiting sites and providing quotes is an integral part of the applicant’s job and, in the Tribunal’s view, the applicant would have referred to these activities he engaged in on Wednesday as part of his employment. As he specifically told the Tribunal that he worked only two days that week, the Tribunal finds his subsequent explanation that he also worked on the third day (which he failed to mention in oral evidence) unpersuasive. Neither does the Tribunal accept that his partner had difficulty articulating her responses when she was unable to state the days the applicant worked in the week before attending the Tribunal hearing.

    b.The applicant told the Tribunal that the sponsor did not have a regular job but worked at an Asian grocery for a couple of days last year. The sponsor told the Tribunal that she had a single day of work trial in the month before the hearing and has not had any other jobs for the pat ten years. When told about the applicant’s evidence, the sponsor said that she had a trial placement last year, contradicting her earlier evidence that she has not worked (other than the single day of trial the month before) for the past ten years. The sponsor had not mentioned the job last year in her initial evidence while the applicant had not mentioned this was a work trial when describing his wife’s employment. He told the Tribunal that his wife does not get along with people and for that reason was not able to keep the job.

    In his post hearing submission the applicant explains that his wife initially forgot about the work trial before being prompted by the Tribunal and, in relation to the work trial, the applicant states that his wife only worked for a short time and did not get paid and he did not consider it as work and did not mention it. the Tribunal is mindful that the oral evidence related to employment as well as work trials, so it is not entirely clear why the applicant would not mention the work trial, even if it was unpaid and a brief one.

    c.The applicant told the Tribunal that their regular shopping day is Sunday. The sponsor said the regular shopping day is Saturday. When this discrepancy was pointed out, the sponsor changed her evidence and said the shopping could be on either day of the weekend, which is contrary to their initial evidence.

    In his post-hearing submission the applicant states that their shopping routines are irregular and they felt they only had to give one day when responding to the question while the shopping is done on any day. The Tribunal is concerned that this was not the evidence when questioned by the Tribunal as neither party explained that they do not have a regular shopping day and there was nothing in the Tribunal’s question that would lead them to believe that  only one day could be mentioned. It appears to be an explanation that has been prepared to explain the inconsistency in their evidence.

20. The Tribunal acknowledges that these inconsistencies are minor and none of these, when considered on their own or together, necessarily undermine the applicant’s and the sponsor’s evidence. However, when considering the whole of the evidence and noting the concerns set out elsewhere in this decision record, the Tribunal does place some (albeit minor) weight on these inconsistencies as the Tribunal is of the view that these do not support the claim that the applicant and the sponsor have established a joint household.

21. Neither is the Tribunal satisfied that the applicant and sponsor have joint responsibilities for the care and support of the sponsor’s children. In oral evidence the applicant displayed minimal knowledge about his older step-daughter’s schooling. He could not state what subjects she was taking or what her interest might be after she completes her schooling. (The Tribunal acknowledges that the sponsor had minimal knowledge about these matters as well). The applicant told the Tribunal that he has not been involved in the parent-teacher nights at school. The applicant told the Tribunal that he is too busy with work but the Tribunal does not accept that work commitments explain his apparent lack of involvement (or interest) in the children’s schooling.

22. The applicant told the Tribunal that he had left these things to his wife but he might get more involved with the children in the future. The Tribunal finds that evidence problematic if the applicant has shown limited involvement with the elder child in the nearly seven year marriage but has now expressed readiness to become more involved. The Tribunal had formed the view that the applicant is willing to provide whatever evidence he believes would be helpful to his case.

23. The Tribunal has considered the social aspects of the relationship. In the 20 November 2018 statement the applicant stated that their respective families are aware of their marriage and relationship. The applicant presented with the application photographs of the wedding ceremony and reception held on 9 September 2016, which showed the applicant and the sponsor together and with a number of other people. The applicant presented a number of statutory declarations with the application and additional statements to the Tribunal. The applicant also presented to the Tribunal numerous photographs taken on different occasions showing the applicant and sponsor together and with family and friends and invitations issued to both of them. The Tribunal is prepared to accept that the applicant and sponsor represent themselves to other people as being married to each other. The Tribunal accepts that friends and acquaintances believe the relationship to be a genuine one. The Tribunal accepts that they plan and undertake joint social activities.

24. The parties claim to have been in a relationship since 2016 and to date, the relationship has been in existence for approximately seven years. In describing their future plans, the applicant and sponsor both stated that they want to have a child together. However, both explained that they only made that decision in February 2023 when the sponsor returned to Vietnam. The applicant told the Tribunal that they had ‘put it on hold’ in the past as his wife’s children were too young but he believes now is the right time to have a child. The applicant also refers to his visa status as the reason they did not try to have a child earlier. The sponsor also referred to her children being too young as the reason they did not try to have a child before. Noting that the sponsor’s children are now 17 and 10, it is unclear to the Tribunal why they are considered to be too young for the couple to have another child, if they genuinely intended to have one.

25. The applicant told the Tribunal that his wife did not want to have children in the past but he insisted and his wife agreed to have a child since his return to Australia in February 2023. The timing of that claimed agreement seems to have been affected by the visa process rather than the couple’s genuine plans.

26. Notably, in the written statements that accompanied the application, the couple stated that they plan to have children together in the future. The applicant’s evidence to the Tribunal is that they have not tried to conceive until earlier this year. Again the Tribunal has formed the view that the applicant and sponsor have decided that mentioning their desire to have a child would assist the applicant with the visa application. The Tribunal has formed the view that  they have not been truthful in this aspect of their evidence and the Tribunal is not satisfied that they genuinely intend to have a child together.

27. Similarly, the applicant told the Tribunal that he and the sponsor will travel together. Given that they have not travelled together since their marriage in 2016, the Tribunal does not accept that they genuinely intend to do so now. Rather, the Tribunal is of the view that the applicant believed making that statement would benefit his visa application.

28. There are other aspects of the applicant’s evidence that are of concern to the Tribunal. The Tribunal found the applicant to be evasive in his oral evidence and his answers often changed when questioned by the Tribunal. For example, he repeatedly told the Tribunal that he had no direct contact with his wife’s family in Vietnam but was present when his wife and children talked to her parents. He told the Tribunal he has not spoken to his parents in law since the trip to Vietnam. When the Tribunal questioned why there was such lack of contact, his evidence changed and he told the Tribunal that he regularly speaks to his wife’s family when the sponsor calls them.

1. There were a number of inconsistencies in the couple’s oral evidence as noted below.

   -The applicant told the Tribunal that the sponsor does not get child support and is pursuing the matter but he does not know what the outcome is. The sponsor said that she has been receiving regular (albeit small) child support from her ex-husband. When asked why the applicant was not aware of it, the sponsor said that she did not think she had to inform the applicant about the child support. The Tribunal notes that not only the applicant was unaware of the payments but he had expressly told the Tribunal that the sponsor is pursuing child support but has not been successful. The applicant told the Tribunal that it was only a small amount and his wife did not share the information with him as they do not share everything and in his post-hearing written submission the applicant also explained that the amount was small so his wife did not inform him about it but they focussed their discussions about getting a bigger payment.

   -The applicant told the Tribunal that they had not hosted karaoke since before he travelled to Vietnam in 2022. The sponsor said they had karaoke last weekend. She explained the discrepancy by stating that the applicant may not have done any singing but the question was about the event, not the applicant’s participation in it.

   In his post-hearing submission the applicant also explains that he had not invited his friends to the karaoke due to business commitments but his wife continued to frequently host karaoke events. However, the Tribunal’s questions were not about whose friends attended, but simply about the existence of such events. The Tribunal has formed the view that the offered explanation is an invention designed to explain the inconsistency in evidence. 

   -The applicant told the Tribunal his brother in law works on the family farm and has no other job. The sponsor said that her brother, who is a university graduate, works for a factory. She did not know if he had other jobs. In his submission of 8 August 2023 the applicant states that he was not aware that his brother in law was employed in a factory and supported his parents with the farm work during his off-work hours. The applicant states that their communication revolves around discussions concerning the fruit garden and the brother in law’s assistance in harvesting and selling.

   -The applicant told the Tribunal that his younger brother lives in South Korea. The sponsor said that all of his siblings live in Vietnam. When the discrepancy was pointed out, the sponsor said that her husband had mentioned it but she forgot and in his post-hearing submission the applicant states that his wife was unable to remember, noting that the brother’s residence in Korea was intended to be temporary. The applicant notes that his wife had never met his siblings in person and did not consider that information to be significant.

2. The sponsor suggested, in response the concerns raised by the Tribunal that she has a problem with her memory. She confirmed she has no medical evidence to support that claim. There is no evidence of any diagnosis before the Tribunal and nothing to support the sponsor’s explanation that she has poor memory. The Tribunal does not accept that the sponsor has memory loss or that the discrepancies were caused by it. In his submission to the Tribunal of 8 August 2023 the applicant also refers to the stress and pressure they experienced during the interview and the Tribunal has given due weight to these factors, acknowledging that they may affect the way in which evidence is given. Throughout the hearing, the Tribunal sought to clarify the answers and gave the parties the opportunities to present their evidence thoughtfully and accurately.

3. The applicant also states in his written submission that the translation process may have contributed to misunderstandings in responding to the questions asked. However, the applicant (nor his representative) had identified any errors or concerns about the interpretation of evidence and in these circumstances, the Tribunal does not accept the discrepancies resulted from erroneous or inadequate interpretation.

4. The Tribunal acknowledges that none of the discrepancies identified above are significant and none are fatal to the application. As noted above, the Tribunal acknowledges that much of the couple’s oral evidence was consistent. However, the combination of these discrepancies raises significant concerns for the Tribunal and supports the Tribunal’s view that the parties do not share the household, that they do not view the relationship as a long term one, that they do not share adequate information with each other. The Tribunal is not satisfied they provide each other with companionship and emotional support.

5. The Tribunal has considered all the circumstances of the relationship. The Tribunal accepts that some aspects of the relationship appear to suggest it is a genuine one and the Tribunal gives these appropriate weight. However, considering the evidence as a whole, and noting the Tribunal’s concerns set out above, the Tribunal is not satisfied that the applicant and sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal is not satisfied they are in a genuine and continuing relationship. the Tribunal is not satisfied that the requirements of s 5F(2) are met at the time the visa application was made and the time of this decision.

6. There is no evidence that the applicant meets any of the alternative criteria in cl 820.211(7), 820.211(8), 820.211(9), 820.221(2), 820.221(3). Therefore the applicant does not meet cl 820.211(2)(a) and cl 820.221.

   Conclusion

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

   DECISION

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

   Kira Raif
   Senior Member