Pen (Migration)

[2018] AATA 2608

Pen (Migration) [2018] AATA 2608 (12 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Rin Pen

VISA APPLICANT:  Mr Sim Suy

CASE NUMBER:  1611595

DIBP REFERENCE(S):  BCC2015/1867978

MEMBER:Marten Kennedy

DATE:12 June 2018

PLACE OF DECISION:  Adelaide

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

Statement made on 12 June 2018 at 4:43pm

CATCHWORDS

Migration – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse)(Provisional)) – Genuine relationship – Substantive age differences between visa applicant and review applicant – Live in different countries – Phone and internet communication records – Lack of detailed plans for future life together –Financial aspects – Limited means to pool financial resources – Money transfers from the Review applicant to Visa applicant – Credibility issues – Application to securing a migration outcome – Decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5F, 65

Migration Regulations 1994 (Cth), r 1.15A Schedule 2 cls 309.211, 309.322

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 June 2016 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant, Mr Suy, applied for the visa on 29 June 2015 on the basis of his relationship with his sponsor, Ms Pen, the review applicant.

3. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. Relevantly to this matter the primary criteria include cl.309.211 which may relevantly be satisfied through cl.309.211(2).  This relevantly requires that at the time the visa application was made the visa applicant is the ‘spouse’ of an Australian citizen.

5. ‘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.

6. In this case, Ms Pen and Mr Suy claim to have married on 17 November 2011, but not to have registered that marriage with Cambodian authorities until 17 December 2013.  The applicant provided a translation of a Cambodian marriage certificate, recording the entry and certification of a marriage of 17 December 2013 in Cambodian marriage records. I proceed on the basis that Mr Suy and Ms Pen are validly married under Cambodian law.

7. For migration purposes however, a valid marriage is of itself insufficient.  In addition, I must be satisfied to determine that:

   ·there is a mutual commitment to a shared life as husband and wife to the exclusion of all others,

   ·the relationship is genuine and continuing, and

   ·the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(b)-(d).

8. In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.15A(3).

9. The delegate refused to grant the visa on the basis that the couple had not demonstrated a mutual obligation to one another or a genuine intention to live together as spouses.  The delegate was concerned about evidence given during an interview that revealed no real plans for the future, significant period of time where the couple did not have contact and a lack of investment in the relationship following a refusal of a visa application in 2014.

   CONSIDERATION

   Background

10. In a statement accompanying the visa application, Ms Pen states that she met her husband in 2007 when she had travelled to Cambodia for a holiday to visit family and friends. Her husband was the nephew of a friend’s husband with whom she was travelling.

11. Ms Pen states that at first she was suspicious of Mr Suy’s interest in her because there is an age difference (Mr Suy is 34 and Ms Pen is 61), but despite this she accepted Mr Suy’s proposal during the trip.  It was decided between the couple that they would live in Australia because Ms Pen already has six children who live here.

12. Ms Pen says she maintained contact with Mr Suy by telephone, and returned to Cambodia a number of times between 2007 and 2011 when they married.  Ms Pen says the marriage was not registered until 2013 because she did not know she needed to ask for a certificate.

13. Ms Pen states that she met all the costs associated with applying for a visa in 2012, and was upset by its refusal.  The decision was affirmed by the Tribunal in 2014.  Ms Pen states she lodged this second visa application in June 2015, but was unable to afford to travel to Cambodia to see her husband.

14. As to the 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, Ms Pen states in her initial statement that the couple do not have a joint bank account, but she started sending money to Mr Suy in 2007, and has continued to send money over the last 9 years, which she would do by money transfers and through arranging for friends to carry money to him in Cambodia.

15. As observed by the delegate, the corroborating financial records show transfers of money up to 2011, and then again from 2015.  The delegate’s concern was that this appeared to correlate to when visa applications were being made.  This created a concern for the delegate that the money transfers may be being undertaken to provide supportive evidence for the financial aspects of the relationship (the inference being that they do not therefore represent genuine financial support).

16. I invited Ms Pen to comment on this concern of the delegate.  Ms Pen confirmed that she stopped transferring money to Mr Suy between 2012 and 2015.  She told me that she stopped because Mr Suy had asked her to stop and save money.  Ms Pen said it was her idea to start sending money again, and this coincided with her having some money available to send.  In his evidence, Mr Suy could not remember why Ms Pen had stopped sending money, and could not remember the circumstances in which it started again.  As to the immigration officer’s concern that the transfers appeared to coincide with visa application, Mr Suy said that if he needed funds he would call Ms pen and she would send money.

17. In her evidence, Ms Pen told me as to her financial circumstances generally that she owns her home with a $50,000 mortgage.  She used to work pruning grapes but is now medically incapacitated and receives newstart allowance.  She receives the payment at the single rate, but assures me she told Centrelink she was a member of a couple a long time ago, but they agreed to continue paying her at the single rate because immigration was not letting her husband come to Australia.  Ms Pen does not otherwise own any assets or have any debts.  Ms Pen demonstrated basic knowledge about Mr Pen’s circumstances in Cambodia, telling me that he grows tapioca on land owned by his mother.  He owns part of a house on that land, but does not own any other assets.  Mr Suy demonstrated basic knowledge about Ms Pen’s previous employment and income.  I note also however that the delegate’s perception of the parties at interview (June 2016) was that they had demonstrated a lack of detailed plans for their future together and had not appeared to have had detailed conversations about future joint finances.

18. Ms Pen mentions in her initial statement that when she is in Cambodia she stays with her husband, his mother, sister and family.  As mentioned above, Ms Pen has also explained she has met all expenses for the visa.

19. Both Ms Pen and Mr Suy gave evidence in general terms of a future intention to combine their financial resources.  Ms Pen explained that after Mr Suy learned to drive, he might work on the grape vines where she had previously worked. A witness, Mr Orm, (an uncle through marriage of Mr Suy) is a vineyard contractor and had been Ms Pen’s employer.  He told me he would facilitate Mr Pen working in that field if a visa were to be granted.

20. In relation to the financial aspects of the relationship, I find that Mr Suy and Ms Pen do not have jointly owned assets or joint liabilities.  They do not have legal obligations owed in respect of one another.  They do not share a joint household and therefore do not have any sharing of day-to day household expenditure.  I appreciate that this is in the context of two persons residing in different countries, and with the sponsor being of limited means.

21. As to other evidence of pooling of financial resources, and other aspects of the financial circumstances of the relationship, I place limited favourable weight on the evidence of transfers of funds from Ms Pen to Mr Suy in circumstances where it ceased for many years and recommenced only approximate to the current visa application.  Furthermore, I found Mr Suy’s inability to comment meaningfully on the circumstances in which the transfers started or stopped tends to reinforce a conclusion that the transfers were provided primarily to generate documentary evidence pertaining to financial resources rather than a genuine pooling of financial resources.

22. I do not consider that the financial aspects of the relationship support the making of the determinations necessary to conclude that Ms Pen and Mr Suy are in a married relationship.  I am conscious that these considerations are not determinative.

23. As to the nature of the household including any joint responsibility for care and support of children, the parties' living arrangements; and any sharing of housework, it is not in dispute that Ms Pen and Mr Suy do not share a joint household.

24. As to joint responsibility and care for children, Ms Pen has adult children and Mr Suy has no children. Ms Pen told me that she lives with her three sons, while a daughter and another son live elsewhere.  Ms Pen told me that if the visa is granted, Mr Suy would live with her in her home with her children.

25. Ms Pen is 62 years old, while Mr Suy is 34.  It will therefore not be possible for Ms Pen and Mr Suy to have children together.  I explored this issue with both Ms Pen and Mr Suy, as a means of exploring not only the nature of any future household, but also the manner and extent to which the couple addressed this as an issue in their relationship.  In this regard, I also explored with Mr Pen the reaction of his family to him entering into a relationship that would not produce children.  The response of Mr Suy and Ms Pen to this important issue was glib in my perception.  Ms Pen told me that Mr Suy had told her that it didn’t matter.  Mr Suy had no real engagement with this line of questioning other than platitudes.  As to whether he encountered any difficulty from his family in relation to entering into a relationship that would not produce children, Mr Suy told me that he had not encountered any difficulty or objection, including from his mother.  Although this reaction is possible, I consider it unlikely.  The absence of any details as to how this difficult issue was addressed is not consistent with deep engagement with the nature of a future life together.

26. While the parties do not live together, I have taken into account the evidence available to me of the time the parties have spent in each other’s presence during Ms Pen’s travel to Cambodia.  In this regard, Ms Pen told me that when she travels to Cambodia, she visits members of her own family as well as Mr Suy and his family.  By Ms Pen’s estimate, she stays with her family a small proportion of the time and with Mr Pen a larger proportion of the time. I note that written evidence provided to the Department and the Tribunal is to the effect that when Ms Pen is staying with Mr Suy and his family, she will help the family cook.  This is corroborated by a statement from Ms Touch YEM, Mr Suy’s mother.  There is also photographic evidence supporting Mr Suy’s and Ms Pen’s statements to the effect that Ms Pen has stayed with Mr Suy and his family when in Cambodia – most recently in March 2017.

27. While I accept this to be the case, and I am conscious that the particular circumstances of Ms Pen and Mr Suy are such that no joint household has been established, I do not consider that this consideration weighs in favour of making the determinations necessary to find that Mr Suy and Ms Pen are in a married relationship. 

28. As to the 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 I have received and considered a number of translated statements from persons in Cambodia and received and considered statements from persons in Australia.

29. As to the statements from Cambodia, I have taken into account the opinion expressed by Mr Suy’s mother that Mr Suy and Ms Pen are truly husband and wife, and note the evidence given about meeting Ms Pen at the airport and her stay.

30. A statement of Ms Chanry Some, Mr Suy’s younger sister, states that the couple are married and Ms pen has regularly visited Mr Suy’s home.

31. A statement of Chea Meas, Ms Pen’s older brother purports to certify that the parties are spouses, and mentions they have stayed at Mr Chea’s home.  A further statement from Mr Meas describes members of Ms Pen’s family the parties visited.

32. A statement of Ms Run Yem (Mr Suy’s aunt) confirms she attended the wedding and that Ms Pen will visit.

33. Ms Pen’s younger sister also states that she attended the wedding and states that the couple married without any pressure from parents.

34. Mr Suy’s younger brother, Ms Sim Yanny states that Ms Pen and Mr Suy are married, and that Ms Pen visits.

35. Mr Yam YUNG is Mr Suy’s uncle, and he states that he attended the wedding  and the family did not pressure the couple to marry.  I clarified at hearing that the reference to Ms Pen being Mr Yung’s niece was as a consequence of the her being married to Mr Suy, and that Mr Suy and Ms Pen were not biologically related.

36. I have also taken into account the statements provided in support of the application to the Department from the same deponents.  I observe that despite the number of statements provided, there is little detail in the statements other than describing presence at the wedding, receiving visits from Ms Pen when she is in Cambodia and assertions as to the genuineness of the relationship.  The content of these statements provided limited assistance in understanding the social aspects of the relationship, although I accept that members of both Ms Pen’s and Mr Suy’s family attended the wedding and have seen the parties together and received visits from them from time to time.

37. The statements from witnesses in Australia include statements from Ms Pen’s adult children.  None of these deponents attended the hearing in support of the application

38. Ms Bora Chhin states that she is Ms Pen’s  second youngest child, and lives in the family home with Ms Pen, two brothers and a sister.  She states she travelled to Cambodia in 2011 for the wedding of Ms Pen and Mr Suy.  She states that she believes the relationship is getting stronger and observed Mr Suy and Ms Pen to be upset when it was time to leave after a recent trip to Cambodia.

39. Mr Moul Chhin is the eldest son of Ms Pen.  He met Mr Suy when he was travelling to Cambodia to get engaged to his wife. He says he has seen the relationship develop with them getting married in 2011 and then going from strength to strength.

40. Ms Sary Chhin is the second oldest daughter of Ms Pen and she also lives in the same house.  She says she will speak to Mr Suy 1-2 times per month.  She believes the relationship to be genuine, noting her mother has travelled to Cambodia at least 7 times to see him.

41. Alex Chhin is the youngest child of Ms Pen. He states that he has met Mr Suy in Cambodia . He says he has never seen his mother so happy as she is when she goes to Cambodia or when she receives a call from Ms Suy

42. Mr Steven Possingham states Ms Pen is the grandmother to his two children.  He states that he believes the relationship is loving, true and honest.

43. I have also considered a statement of Mr Orm.  Mr Orm attended the Tribunal to give evidence. Mr Yoeng Orm states that he has known Ms Pen since they were in a refugee camp together.  He states he has also known Suy for 12 years, being the nephew of his ex-wife. He states that the relationship is real and genuine in his eyes and he has travelled with both Mr Suy and Ms Pen.

44. In his oral evidence, Mr Orm told me that he had not provided any assistance in meeting visa application charges for Mr Suy – this was also the effect of Ms Pen’s evidence.  Mr Orm confirmed that he is a vineyard contractor, and he would facilitate his nephew working for him if the visa is granted. I asked Mr Orm if this was why he was supporting the application, but Mr Orm told me that this was not the case, but he had seen the couple travelling for leisure together and believed them to be in a genuine relationship.

45. I have also considered the statements of other Australian-based witnesses.  Hean Chhin states they are a close friend of Ms Pen and is aware of her marriage to Mr Suy. Tha Chao states that they have known Ms Pen since 1984, and believes the relationship to be genuine.

46. I have also noted evidence of telephone bills and WhatsApp records demonstrating regular telephone contact between Ms Pen and Mr Suy from 2014 to 2017, and Facebook posts showing the couple in various locations in Cambodia in 2013, 2014 and 2016.  I have also examined annotated photographs provided of Ms Pen and Mr Suy during Ms Pen’s visit to Cambodia in 2017, along with receipts for joint accommodation and travel itineraries. I note the photographs show the parties in a range of locations and with a wide variety of people.

47. As to the social aspects of the relationship, I accept that the parties have represented themselves to other people as being married, and I note that the opinion of friends and family members is supportive of the application.  There is however limited detail in the supporting statements as to the nature of the relationship.  I accept that when together, the parties have spent time travelling with each other and visiting members of each other’s family in Cambodia.

48. I consider that the evidence before me as to the social aspects of the relationship demonstrates support of friends and family and a degree of joint activity.  I take into account the submission that here have been 8 to 9 trips to Cambodia by Ms Pen, and note the submission (not confirmed by Departmental records) that Mr Suy did attempt to visit Australia on one occasion.

49. The evidence as to the social aspects of the relationship tends to support the contention that the parties are in a married relationship.  I take this into account favourably, but observe that this factor is not of itself determinative.

50. As to the nature of persons' commitment to each other – I am to consider the duration of the relationship; the length of time the parties have lived together; the degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

51. I take into account that the parties met in 2007 and married in 2011.  Over this period of time however, the parties have not lived together, other than during Ms Pen’s visits to Cambodia.   I accept in this regard that Ms Pen has visited Cambodia on a number of occasions between 2007 and the present, albeit in the context of Ms Pen also having relatives living in Cambodia.

1. I note the observation of the delegate that Ms Pen travelled to Cambodia regularly up until a year after a first partner visa application was refused, but then did not leave Australia between late 2014 and March of 2016, post-dating the time of the visa application.

2. I have taken into account Ms Pen’s and Mr Suy’s written statements expressing their commitment to each other.  I take into account the Ms Pen has previously sponsored Mr Suy for a partner visa application, and unsuccessfully pursued the refusal to the Tribunal.  On the one hand, I can see that multiple applications for partner migration to Australia may be indicative of a high degree of commitment, but on the other hand I am conscious that it may also be consistent with pursuit of a migration outcome without the commitment to an ongoing spousal relationship.

3. In the course of receiving evidence from Ms Pen and Mr Suy, and examining all the documentary evidence before me, I have sought out, but not observed, any particular matter or matters giving me insight into the existence of a committed spousal relationship, or demonstrating companionship and emotional support consistent with a spousal relationship.

   Assessment

4. I have taken into account the submissions advanced on behalf of the applicant by her registered migration agent. Mr Do contends that while I may have observed that answers to my questions during the hearing were simple and emotionless, I should assess that evidence in the context of the parties being simple people who are disinclined to give elaborate or eloquent answers. 

5. In response to a line of questioning I had raised with the witness Mr Orm, it was submitted that while Mr Orm was the link that had lead to the introduction of the parties, I should not draw the conclusion that the purpose of the visa application was to bring Mr Suy to Australia to work in Mr Orm’s business.  To avoid doubt, I have concluded that I have insufficient evidence to make any such adverse finding.  I accept, as was submitted, that introductions and referrals of this nature are common in Asian societies.

6. I note the submissions as to the support provided for the application by Ms Pen’s children and note also the extensive evidence in the form of telephone and internet communication records demonstrating contact between the parties.

7. As to my concerns regarding the large age difference between the parties, it was acknowledged that the age difference may be of concern, but I was asked to prefer the body of evidence otherwise supporting the application.

8. I consider that the financial aspects of the relationship and the nature of the household do not support the making of the determinations necessary to find that Ms Pen and Mr Suy are in a married relationship.  I am conscious that these matters of themselves should not conclusively inform me about the outcome of my deliberations.  As mentioned above, I accept that both the sponsor and applicant have limited means to pool financial resources, and it is not unusual in the context of a subclass 309 application that a joint household has not been formed.

9. I consider that the evidence addressing the social aspects of the relationship provide support for the contention that the parties hold themselves out as being in a married relationship, but the nature of evidence of this kind is such that it must be considered in light of other matters.

10. As to the nature of the person’s commitment to each other, I am concerned to observe the delegate’s remarks that the parties demonstrated limited knowledge of each other’s circumstances at interview, and also concerned to observe the coincidence in the resumption of financial transfers at about the time the visa application was lodged after a lengthy hiatus.  These factors suggest that commitment to securing a migration outcome may be the primary driver of the relationship between Ms Pen and Mr Suy.

11. I hold a major concern in this case in relation to the age difference between the couple.  I am to have regard to all the circumstances of the relationship for the purpose of considering whether the parties are in a married relationship.  More specifically, it is not the large age difference that is my primary concern, but rather the absence of any real or cogent explanation or engagement with the unusual age difference between the parties of a kind that may be present if parties have overcome such an unusual feature of their relationship.

12. While I accept that genuine spousal relationships may exist between people of different ages, the age difference between Ms Pen and Mr Suy is very large indeed.  Ms Pen’s son is older than Mr Suy, and Ms Pen is older than Mr Suy’s mother.  The large age difference is not accompanied by any explanation beyond platitudes as to how the relationship developed and endured despite the age difference. 

13. It is notable that Ms Pen’s children do not address this matter at all in their written statements, and indeed none of the statements of other witnesses appear to mention it.  It is also notable that I did not perceive any plausible engagement with my questions about the difficulties the age difference may present. 

14. Ultimately, having examined all the evidence available to me against the factors provided for in r.1.15A(3) of the Regulations, I am not positively satisfied as to the genuineness of the relationship or the a mutual commitment to a shared life as husband and wife to the exclusion of all others. I have significant residual concerns about these matters arising out of the manner in which the parties addressed my questions about the large age difference between them, and also the absence of any cogent evidence otherwise demonstrating a degree of commitment to each other consistent with the relationship being a genuine spousal relationship.

15. As I am not satisfied to determine that the relationship is genuine, and am not satisfied to determine that there is a mutual commitment to a shared life as husband and wife to the exclusion of all others in light of the concerns I have mentioned, it follows that I do not find that the parties are in a married relationship, and therefore were not each other’s spouses at the time of the application. On the basis of the above I am not satisfied that the requirements of s.5F(2) are met at the time the visa application was made.

16. Therefore the visa applicant does not meet cl.309.211(2) of the regulations.  the alternative in cl.309.221(3) is not applicable to the visa applicant because he claims to have married his sponsor.  The applicant does not therefore satisfy cl.309.211 and the visa must be refused.

    DECISION

    The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

    Marten Kennedy
    Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (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).