Nguyen (Migration)

[2022] AATA 4666

Nguyen (Migration) [2022] AATA 4666 (6 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Hung Nguyen
Miss Ba Hong Truc Nguyen
Mr Ba Song Thanh Nguyen
Mr Ba Song Toan Nguyen

CASE NUMBER:  2104074

HOME AFFAIRS REFERENCE(S):          CLF2013/81253

MEMBER:Kira Raif

DATE:6 December 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Partner (Residence) (Class BS) visas.

Statement made on 06 December 2022 at 3:30pm

CATCHWORDS

MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – genuine and continuing partner relationship – relationship ceased – limited joint financial commitments – companionship and emotional support – child from the relationship – shared Christian values – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 5, 65, 359
Migration Regulations 1994, Schedule 2, cls 801.221, 801.321; 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 Immigration and Border Protection on 11 July 2017 to refuse to grant the applicants Partner (Residence) (Class BS) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant (the applicant) is a national of Cambodia, born in January 1960. He made the application for the Partner visa on 12 April 2013 on the basis of his relationship with his sponsor. The application now includes the applicant’s three children. The applicant was granted the temporary visa in August 2014 but the delegate refused to grant the permanent visa on the basis that the applicant did not satisfy cl 801.221 because the delegate was not satisfied the applicant was the spouse of the sponsor. The applicant sought review of the delegate’s decision.

3. In August 2019 the Tribunal (differently constituted) affirmed the decision under review. The applicant sought judicial review of the Tribunal’s decision and in March 2021 the matter was remitted to the Tribunal for reconsideration.

4. The applicants appeared before the present Tribunal on 17 August and 2 November 2022 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. At the time the application was made, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

6. Relevantly to this matter, cl 801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

7. ‘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 applicant’s and sponsor’s 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.

   Background

8. The applicant was born in Cambodia. He travelled to Australia holding a Visitor visa. His evidence to the first Tribunal is that in his Visitor visa application he claimed to have been married to his first partner and in an ongoing relationship with her.

9. In the present application the parties claim to have met in Vietnam in October 2010 and to have committed to a shared relationship in February 2013 when the applicant proposed to the sponsor. The applicant claims in the present application that he was previously in a de facto relationship and has three children from that relationship. The sponsor was previously in a married and also a de facto relationship and has a child.

10. The applicant and sponsor registered their marriage in Australia on 7 April 2013 (five days before the applicant’s Visitor visa was due to expire) and the applicant made the application for the Partner visa on 12 April 2013. He was granted the temporary visa on 28 August 2014 but the application for the permanent visa was refused because the applicant failed to provide evidence of his ongoing relationship with the sponsor, despite multiple requests by the delegate. The previous Tribunal was also not satisfied that the applicant and sponsor were spouses, having found the applicant not to be a credible witness.

    Previous Visitor visa application

11. Evidence before the Tribunal is that the applicant gave incorrect information in his Visitor visa application by claiming to be in an ongoing spousal relationship with his first partner, even though that relationship ended in 2005.

12. In his submission to the Tribunal dated 10 June 2022 the applicant explains the circumstances surrounding his Visitor visa application. The applicant states that he did not know how to complete the application papers and approached a representative to handle his application. He told the agent that he was previously in a de facto relationship which ended in 2005 and after he was granted the visa, the agent told him that she claimed he had remarried and he was shocked by that. He later willingly told the Department about the error. The applicant states that nobody ever made any inquiry about that issue but due to his willingness to disclose the correct information he had been ‘suffering with ongoing consequences’. The applicant notes that his marriage would not have mattered for the Visitor visa and he regrets the use of the wrong representative. The applicant refers to his involvement with the church in Australia and the existence of compassionate and compelling grounds for the waiver, including his long-term genuine relationship with the sponsor, his contribution to Australia, the contribution made by his children, the operation of his business and his involvement with Yagoona Christian Church. The applicant refers to the hardship that he and his partner would suffer if they were separated. The applicant’s submission is supported by several documents including character references, medical evidence relating to his partner, a statement from the church and other materials. Following the hearing the applicant provided to the Tribunal additional medical reports relating to himself and his partner. The Tribunal accepts the evidence in these reports.

13. In his submission to the Tribunal of 30 November 2022 the applicant also explains that he had approached an agent in Vietnam and was totally dependent on the agent. The applicant states that he told the agent he previously had a de facto relationship but the agent asked him to register the marriage and to sign papers for marriage registration and he believed the marriage registration was genuine. It was only after he came to Australia that he found out the marriage registration was ‘falsely made’.

14. In oral evidence, the applicant also explained to the Tribunal that the marriage certificate was prepared by his migration agent in Vietnam and the agent told him that they need to prepare the document in order for him to get the visa. The applicant states that he agreed with it.

15. The Tribunal has formed the view that the applicant had been deliberately untruthful with Immigration when seeking the Visitor visa. Even if the applicant was not aware that the marriage certificate was ‘falsely made’ as he claims, he did know that he did not have a relationship with that partner. His evidence is that that relationship ended some years previously. The applicant would have recognised that he was pretending to be married to someone for the benefit of obtaining the visa and that in itself was misleading information, even if the applicant did not recognise the marriage certificate itself was problematic.

16. The applicant blames the agent (and his lack of English) but the Tribunal is mindful that the applicant would have been able to communicate with the agent and check the content of his application. The applicant’s evidence indicates that he was aware of the provision of the incorrect information about his ongoing relationship with his partner (even if he did not know about the provision of the bogus marriage certificate at the time). He states that the agent told him that he would not get the visa otherwise. The applicant’s willingness to go ahead with the provision of deliberately misleading information (claiming to be in an ongoing marital relationship with someone when that relationship did not exist) in order to obtain the visa indicates to the Tribunal that the applicant is not a person of credibility and that he is willing to provide false or misleading information for a favourable migration outcome. (The Tribunal discussed this information with the applicant pursuant to s 359AA of the Act.)

17. The Tribunal accepts that the applicant did voluntarily disclose the information about his marriage upon entry to Australia. However, he only did so when the issue of his marriage was no longer relevant to his ability to remain in Australia. That is, when the applicant believed that claiming to be married would assist him in obtaining the Australian visa, he did make that claim. When that claim was no longer helpful to him, he did declare that he was not in fact married.

18. As noted above, the Tribunal has formed the view that the applicant deliberately provided misleading information to Immigration in order to improve his chances of obtaining the Australian visa. The Tribunal reaches that conclusion while acknowledging the applicant’s evidence that he is a religious person and devoted to his Christian faith. The Tribunal finds he is not a person of credibility. That is relevant, in the Tribunal’s view, to the assessment of the present visa application.

    Are the parties validly married?

19. 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 his application a copy of the marriage certificate confirming that he and the sponsor registered marriage in Australia in April 2013. There is nothing to indicate 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?

20. The Tribunal finds the parties’ evidence about the development of the applicant’s relationship with the sponsor unpersuasive. The applicant claims they met at a dancing club in Vietnam in 2010 but maintained only infrequent contact after the sponsor returned to Australia (he mentions maybe twice a year) until he himself came to Australia in 2013 to visit his son. The applicant then states that after he came to Australia, they danced together and had feelings for each other. The Tribunal is mindful that the applicant held a three-month visa and the couple married less than three months after his entry to Australia. When the Tribunal expressed some concern about the haste with which their relationship developed, the applicant stated that they had feelings for each other when he was still in Vietnam. The Tribunal does not accept that evidence, given the applicant’s claim that they contacted each other infrequently, maybe twice a year between 2010 and 2013 and the applicant confirmed that prior to his entry to Australia in 2013 there were no conversations between them about being together or making any commitment to each other. He then changed his evidence and said that they did once speak about their dreams (he refers to fate) and told the Tribunal that prior to his entry to Australia they did discuss being together. The applicant then said that in 2010 when the sponsor was in Vietnam and they were dancing together, they did discuss being together. The Tribunal has formed the view that the applicant has not been truthful in his evidence about the development of their relationship.

21. The Tribunal has generally formed the view that the applicant is not a person of credibility. As noted above, he provided false information (claiming to be in a marital relationship with another person) when seeking the Visitor visa and the applicant’s willingness to provide false information in order to obtain a visa raises strong concerns about his credibility.

22. The Tribunal has found the sponsor’s evidence on this issue also unpersuasive. She told the Tribunal that they did not discuss the relationship before the sponsor travelled to Australia and that they met by chance a few weeks after his arrival in Australia (which would be mid to late January). The applicant proposed in the first week of February. The Tribunal is not convinced that the couple could have formed a commitment to a relationship in a matter of two weeks, at most. The sponsor then said that they did have feelings for each other when the applicant was still in Vietnam but if that is the case, the Tribunal does not accept the applicant would have made arrangements to travel to Australia without letting the sponsor know and that they would only meet by chance. Again, the Tribunal has formed the view that the sponsor was not truthful in describing the inception of the relationship.

23. If the applicant’s most recent evidence (about considering and discussing a committed relationship between 2010 and 2013) is to be accepted, the Tribunal considers it odd that they would only communicate with each other two to three times a year. The applicant suggested that phone contact was expensive but there would have been other means of communicating, including letters, emails, etc. The Tribunal does not consider that such infrequent contact is consistent with the applicant’s claim that he and the sponsor were discussing a committed relationship before his entry to Australia.

24. Notably, the sponsor’s evidence to the Tribunal was different as the sponsor told the Tribunal they communicated once or twice a month during the 2010–2013 period.

25. The applicant’s evidence about their relationship is described above but he ultimately told the Tribunal that before his entry to Australia they discussed being together. The sponsor’s evidence to the Tribunal was quite different. She told the Tribunal that they were friends before the applicant travelled to Australia and they did not have a conversation about being together before the applicant came to Australia. She also said that when her husband came to Australia, he did not tell her when he was coming and she did not know when he travelled and they met by chance. In the Tribunal’s view the fact that the applicant did not tell the sponsor about his impending arrival in Australia is contrary to any claim that the applicant and sponsor thought, or talked about, their relationship or even that they had developed feelings for each other before the applicant entered Australia.

26. The Tribunal has considered all the circumstances of this relationship.

27. The Tribunal has considered social aspects of the relationship. There are a number of third-party statements that had been provided throughout the processing of the application and the Tribunal has given these due weight. The Tribunal acknowledges evidence from the church leaders, as well as from the couple’s treating doctor, who have expressed the view that the relationship between the applicant and sponsor is a genuine spousal relationship. The Tribunal accepts that they genuinely hold that view.

28. The applicant’s oral evidence to the Tribunal is that his closest three friends have had limited (if any) contact with the sponsor and he told the Tribunal his wife has no friends (he could not name any). The applicant told the Tribunal that on special occasions he takes his wife to church and the priest knows about the marriage but he also told the Tribunal that this had only happened a handful of times. The applicant’s evidence to the Tribunal is that he has no contact with his step-daughter and two of his children have not met her. There does not appear to be any meaningful contact with each other’s siblings. (The applicant told the Tribunal he met one of his sisters-in-law once or twice and the other maybe 10 times while his wife only met one of his sisters once and speaks to his elder sister.) The applicant told the Tribunal that he and his wife do not socialise much.

29. The Tribunal has formed the view that there is limited planning and undertaking of joint social activities. There are minimal interactions between family members (at best) and while there are some who are aware of the relationship and may view it as a long-term one, the Tribunal has found that the social recognition of the relationship is very limited. This is of concern to the Tribunal, given the claimed length of the relationship.

30. However, the Tribunal also acknowledges and accepts the evidence of the applicant and third parties about the family’s attendance at church and social activities with the congregation and others. In his post-hearing submission to the Tribunal the applicant provided a statement from the church which refers to the applicant and his family attending various functions, as well as statements from some friends. The Tribunal accepts that there has been some degree of joint planning of social activities but the Tribunal is not satisfied the social aspects of the relationship are consistent with the existence of a genuine and mutually committed spousal relationship of the claimed duration.

31. The Tribunal has considered the financial aspects of the relationship. The applicant’s evidence is that he and the sponsor have been operating a joint account since they were married but the sponsor’s Centrelink payments were only deposited to that account from around 2019. (The sponsor told the Tribunal that her carer supplement goes to her own account while her pension is deposited into the joint account.) The applicant told the Tribunal that his wife pays the mortgage and he does not contribute (but he did pay for some minor repairs). He paid for the car but his wife does not contribute. He pays for living expenses in cash from his own savings (he later changed his evidence and said that some of the living expenses are paid from the joint account but only where cash is not accepted) while his wife pays for the various bills. The applicant said that his sister pays for the children’s schooling. The applicant did not know if his wife had any savings in her personal account or what it was used for. (The sponsor told the Tribunal part of her Centrelink benefit is deposited to her own account.)

32. The Tribunal has formed the view that there was only limited sharing of resources between the applicant and the sponsor. The Tribunal is not satisfied they have joint liabilities or responsibilities for major purchases (such as the mortgage, car and children’s schooling payments not being shared). The Tribunal is not satisfied they have meaningful joint ownership of assets or joint liabilities. The Tribunal accepts there is some (albeit limited) pooling of financial resources and some sharing of daily household expenses. The Tribunal also acknowledges the parties had reasonably good knowledge about some aspects of each other’s financial affairs.

1. In considering the nature of the household, the Tribunal acknowledges that the parties gave consistent evidence about aspects of their daily lives. The Tribunal accepts that the applicant and sponsor have established a joint household and that they share the housework. As noted above, the Tribunal is not satisfied they have joint responsibilities in relation to children, although the Tribunal acknowledges the evidence of the three secondary applicants about the close relationship with the sponsor and the support they receive from her.

2. In considering the nature of the parties’ commitment, the Tribunal accepts that the parties have been married for close to 10 years and it is a lengthy period. However, the duration of the marriage in itself is not an indication of a mutually committed relationship where the Tribunal is not satisfied such a relationship existed in these years.

3. In this case, there were a number of inconsistencies between the applicant’s and sponsor’s oral evidence that cause the Tribunal to have serious concerns about the veracity of their claims. For example,

   -The applicant told the Tribunal his wife stopped working before he came to Australia. The sponsor repeatedly told the Tribunal that she stopped working after the applicant came to Australia.

   In his submission to the Tribunal of 30 November 2022 the applicant explains that in 2012 his wife used to work in a beauty shop and stopped working there prior to his arrival in Australia. In 2014 his wife helped her sister to cook in a takeaway shop but he did not consider it working because in the Vietnamese culture and based on his level of education, helping family does not equate to working.

   The Tribunal does not accept that evidence. Firstly, no explanation has been offered by the applicant during the hearing, when asked about his wife’s employment, about her assisting her sister in a shop. The applicant was adamant that the sponsor stopped working before his entry to Australia while the sponsor (whose understanding of the term ‘work’ may also have been affected by the Vietnamese culture she shares with the applicant) considered she was employed after the applicant’s entry to Australia. In the Tribunal’s view, if the couple did live together since the marriage as they claim, the applicant would be more cognisant of the sponsor’s work arrangements.

   The Tribunal has formed the view that the applicant was simply unaware of the sponsor’s employment after his entry to Australia.

   -The applicant told the Tribunal his eldest son is graduating in June 2023 while the sponsor said that he would graduate in two years’ time. The applicant explains in his submission of 30 November 2022 that his son would complete the degree in June 2023 (he provided evidence of his son’s enrolment) while his wife was referring to the additional two years of work experience that he is required to undertake before he ‘could fully complete his degree’.

   The Tribunal does not accept that explanation because either the secondary applicant will complete the degree in June 2023 without the work experience requirement, or, if the two years of work experience is a prerequisite to completing the degree, then he will not graduate in June 2023. The Tribunal has formed the view that the sponsor has limited knowledge about the child’s schooling, despite the claimed close relationship between them.

   -The applicant’s evidence to the Tribunal is that between 2010 and 2013 when he came to Australia, he and the sponsor spoke to each other maybe two or three times a year. The sponsor said that they spoke to each other one or two times a month. While the Tribunal would not expect the parties to have the recollection of the precise number of conversations, given the passage of time, there is a substantial difference between a couple of times a year and one or two times a month that is not explicable, if the evidence was truthful.

   In his post-hearing submission to the Tribunal the applicant states that he only referred to the contact he had initiated (which was infrequent due to its cost) and his wife made more frequent contact with him as it was cheaper. The Tribunal finds that explanation unpersuasive because its question was about the frequency of the couple’s contact, not limited to contact initiated by one or the other.

   -The applicant told the Tribunal that the sponsor receives carer pension while the sponsor refers to a jobseeker pension with a carer supplement (and claims that the applicant has no understanding of it). The applicant told the Tribunal the Centrelink payments go into the joint account and he was not familiar with the sponsor’s personal account while the sponsor told the Tribunal the jobseeker payment goes into the joint account while the carer supplement goes into her individual account. The applicant explains in his post-hearing submission that he respects his wife’s privacy and did not want to question her about financial matters. The Tribunal is prepared to accept that evidence but remains concerned that the parties may not have meaningful discussions about their financial arrangements.

4. None of these discrepancies on their own may be significant and none of them are fatal to the application. However, the combination of these undermines, in the Tribunal’s view, the parties’ claim that they have been living together for close to 10 years, that they rely on each other and provide support to each other.

5. Both the applicant and the sponsor told the Tribunal that the applicant’s mental health and memory are poor and he cannot recall. The applicant refers to his depression and confusion, as well as old age. The Tribunal acknowledges the information in Dr Luong’s report and has given due weight to the factors set out in that report, including Dr Luong’s reference to the applicant having poor recall. The Tribunal also accepts the parties’ evidence that both the applicant and sponsor attend a doctor to treat their depression. The Tribunal is prepared to accept the applicant’s evidence that they rely on each other for emotional support. That is also the evidence of the applicant’s children.

6. Miss Ba Hong Truc Nguyen told the Tribunal that she hopes she would be able to live in Australia because the tuition fees on her current visa are high and they are not financially able to support her study but she wants to study and work in Australia. With respect to the relationship, Miss Nguyen told the Tribunal that her father and stepmother are old and have health issues and they take care of each other and do things together, including taking care of her grandmother. Mr Ba Song Thanh Nguyen also told the Tribunal that he wants to continue with his study in Australia and to contribute to Australian society. Mr Nguyen states that both his father and stepmother have health conditions and take care of each other. Mr Ba Song Toan Nguyen also expressed the preference for living in Australia and he states that his course fees are high but the course he is undertaking is of benefit to Australia. Mr Nguyen refers to the ongoing relationship between his father and stepmother. The applicant told the Tribunal that his children would be great contributors to the Australian economy. Whether or not that is the case, the Tribunal cannot recommend the grant of the visa on these grounds. Similarly, the applicant states that he and his partner are now old and need to be together but the Tribunal has no discretion to recommend the visa grant in circumstances where it is not satisfied that a genuine spousal relationship exists.

7. The Tribunal accepts that many aspects of the relationship point to its genuine nature. The Tribunal gives significant weight to the fact that the couple have been married for close to 10 years, that they seem to have established a joint household, have some degree of financial sharing and that their relationship is recognised by others. However, the Tribunal also places considerable weight on the discrepancies in the parties’ oral evidence, which, in the Tribunal’s view, undermine their claims of living together as spouses for a lengthy period of time. The Tribunal’s finding that the applicant is not a person of credibility and that he is willing to be untruthful if it assists him to obtain a visa, also supports a conclusion that the documentary evidence that has been presented in support of this case is not as reliable.

8. The Tribunal also acknowledges the concerns expressed by the applicant with the conduct of the hearing in his submission of 30 November 2022. The Tribunal has made appropriate allowances for the couple’s health issues, nervousness at the hearing and the fact that the evidence was given through an interpreter, and any inaccuracies that may arise as a result. The Tribunal has formed the view that the applicant and sponsor had been given a genuine opportunity to present evidence and arguments.

9. Despite many of the findings being favourable to the applicant, and having regard to all the circumstances of this relationship, overall the Tribunal has not been satisfied that the applicant and the sponsor have a mutual commitment to a shared life together as husband and wife to the exclusion of all others. The Tribunal is not satisfied their relationship is genuine and continuing.

10. Given these findings the Tribunal is not satisfied that the requirements of s 5F(2) are met at the time of this decision. Therefore the applicant does not meet cl 801.221(2)(c). Furthermore, the applicant has not claimed to meet, and there is no evidence before the Tribunal that the applicant meets, the alternative criteria in cl 801.221(2A), (3), (4), (5) or (6). The secondary applicants do not meet cl 801.321.

11. The applicant provided submissions and evidence concerning the waiver of PIC 4020(1). The Tribunal has had regard to that evidence but, as the Tribunal is not satisfied the applicant meets the other aspects of the visa requirements, the Tribunal has not given consideration to the application and waiver of PIC 4020.

    Conclusion

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

    decision

13. The Tribunal affirms the decision not to grant the applicants Partner (Residence) (Class BS) visas.

    Kira Raif
    Senior Member