Pham (Migration)

[2023] AATA 2643

Pham (Migration) [2023] AATA 2643 (6 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Thi Hoai Thu Pham

REPRESENTATIVE:  Mr Linh Minh Tran (MARN: 0958538)

CASE NUMBER:  1932570

HOME AFFAIRS REFERENCE(S):          BCC2018/2882786

MEMBER:T. Quinn

DATE:6 July 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·Clause 820.211(2) of Schedule 2 to the Regulations

Statement made on 06 July 2023 at 12:55pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820– validly married – criminal activities – genuine and continuing relationship – parties see their relationship as a long-term commitment – evidence for and against the applicant in this case finely balanced – benefit of the doubt – decision under review remitted       

LEGISLATION

Migration Act 1958, ss, 5, 65

Migration Regulations 1994, Schedule 2, cl 820.211

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 1 August 2018, the applicant (‘the applicant’ or ‘Ms Pham’) applied for a Partner visa[1] (‘the visa’) based on her marriage to her sponsor, Mr Khanh Vi Nguyen (‘the sponsor’ or ‘Mr Nguyen’).[2]

   [1]           Specifically, a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa.

   [2]Pursuant to section 65 of the Migration Act 1958 (‘the Act’). At the time of the applicant’s application, Class BS contained only one subclass: Subclass 801 (Partner) and Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of these visas are set out in Parts 801 and 820 of Schedule 2 to the Migration Regulations 1994 (‘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.

2. On 4 November 2019, a delegate of the Minister for Home Affairs (‘the delegate’) refused the applicant’s partner visa application, not being satisfied that at the time of application the applicant was the spouse of the sponsor as defined by section 5F of the Act (‘the delegate’s decision’).[3]

   [3]           See clauses 801.221 or 820.211 of the Migration Regulations 1994 (‘the Regulations’).

3. On 15 November 2019, the applicant applied for a review of the delegate’s decision with this Tribunal.[4]

   [4] Pursuant to sections 338(2) and 347 of the Act.

4. On 7 June 2023, the applicant and the sponsor appeared before the Tribunal to give evidence and present arguments.  The Tribunal also received oral evidence from Mr Quang Thinh Dang, a friend of the applicant and the sponsor.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicant was represented in relation to the review and their representative also attended the hearing on 7 June 2023.

6. I have determined that it is appropriate to remit this application.  I have proceeded to a decision having regard to all the information before me.  In reaching my decision, I have regarded:

   a.the oral evidence and submissions of the applicant, the sponsor and Mr Dang given at the hearing;

   b.all material filed by or on behalf of the applicant; and

   c.other relevant documents on the Tribunal and Department files.

   Not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the reasons set out below. The reasons incorporate reference only to that information found to be fundamental or materially significant to the determination of the issues in the case.[5]

   [5]In this regard, please see Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 (24 February 2020) at [82] and [96].

   STATUTORY AND LEGAL FRAMEWORK

7. The issue in this case is whether the applicant and the sponsor are in a spouse relationship as defined by section 5F of the Act.

8. Clause 820.211(2) of the Regulations 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 visa applicant claims that she is the spouse of the sponsor, Mr Khanh Vi Nguyen (‘the sponsor’), who is an Australian born Australian citizen. Based on the information before me I am satisfied that the sponsor is an Australian citizen.[6]

   [6]See page 35 of the Department file being the sponsor’s Australian birth certificate.

9. ‘Spouse’ is defined in section 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.[7] 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 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in clause 1.15A(3) of the Regulations are effectively questions which must be answered.[8] 

   [7] Section 5F(2)(aa)-(d).

   [8]           He v MIBP [2017] FCAFC 206.

10. The matters outlined in clause 1.15A(3) of the Regulations (and any other circumstances of the relationship under clause 1.15A(2)) must be considered and, to the extent relevant, applied to the applicant’s case. Accordingly, I have carefully considered these matters in relation to the material and evidence before me. I recognise, however, that the Tribunal is an independent statutory body. I must therefore reach my own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor of clause 1.15A is relevant and applicable, independently of any conclusions reached by the delegate.

11. Compliance with the prescribed criteria turns on whether or not the criteria have been met and not on the objective existence of that fact.[9]  In determining whether it is so satisfied, decision makers are not required to uncritically accept any or all of the claims  made by the applicants and I have not done so.  A decision maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion is not made out.[10]

    [9]           Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5 at 15.

    [10]Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 at [7].

12. If a decision maker does not believe a particular witness, no detailed reasons need be given as to why that particular witness was not believed.  The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepts or rejects individual pieces of evidence.[11]

    [11]Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67].

13. It is for the applicant, in this inquisitorial process, to put whatever evidence or argument they wish to a decision maker in order to enable that decision maker to reach the requisite state of satisfaction.[12]

    CONSIDERATION OF CLAIMS AND EVIDENCE

    [12]Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76].

    Valid marriage

14. If Mr Nguyen and Ms Pham (‘the applicants’) are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.  The applicants have filed a copy of their Marriage Certificate with the Tribunal which indicates they were married on 22 December 2017.[13] On the evidence, the applicants were married to each other under a marriage that is valid for the purposes of the Act as required by section 5F(2)(a).

    [13]          See Marriage Certificate at page 36 of the Department file.

    Timeline

15. The applicant first arrived in Australia on a student visa in April 2014.  She has provided detailed evidence about a traumatic and abusive relationship she was in prior to meeting the sponsor.

16. The couple met in June 2016 at an international students’ event where the sponsor was volunteering, and their relationship commenced later that year.

17. The couple got engaged in June 2017 and were married in December 2017.  The couple commenced living together at the sponsor’s mother’s house around this time.

18. The couple had a wedding reception on 25 February 2018 in Vietnam and made the application which is the subject of this review in August 2018.

    Evidence Generally

19. Although much of the evidence given at hearing was consistent, there were significant inconsistencies on aspects of the relationship that raised concerns that this relationship may be contrived for migration purposes.  I have reservations about the true nature of the applicant’s future intentions.  The applicant has filed post hearing submissions which seem to suggest she expected her husband to perjure himself.  In her statutory declaration sworn 14 June 2023, the applicant, referring to inconsistent evidenced about the number and location of her tattoos, states ‘I never anticipated that he would also bring up the tattoo on my bottom, despite my explicit request for him to keep it confidential’.  The sponsor did not ‘bring up’ the tattoo, he answered my direct question on this topic and followed my instructions given at the outset of the hearing that it is an offence to give false evidence under oath or affirmation.  Whilst I appreciate the applicant may have different views about privacy and there may be cultural issues involved, I have reservations about the applicant’s credibility and consider she may be motivated by securing a migration outcome.  In this regard, I note also that she was evasive about her criminal record and the fines she had paid from the joint account as part of a criminal sentence, saying she could not remember what those payments were for.  She also appeared to have no knowledge of her husband’s role in the army reserves, despite this involving deployments interstate (I acknowledge she has filed post hearing submissions in this regard).  I found the sponsor’s evidence more reliable. 

20. The applicants gave inconsistent evidence about whether the sponsor had a ring when he proposed and where their wedding rings were purchased.  I note their post hearing submissions in this regard but remain very troubled by this.

    Financial aspects of the Relationship

21. 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; and any sharing of day-to-day household expenses must be considered when assessing the financial aspects of the relationship.

22. The applicants have filed evidence of a joint account from February 2018-June 2021 which appears to be used by the applicant predominantly.  The applicants gave evidence at hearing that their income does not go into the joint account and they use the joint account to pay for groceries or shopping.  The applicant gave evidence that the joint account had been scammed in the past and they did not want to put all their money in there.  The sponsor gave evidence that it would look good for a bank for purchasing a house in the future if he has his savings in his own account.  He gave evidence that he has AUD30,000 saved in his bank account.  I am troubled by this evidence and the fact that the applicant did not mention her husband’s savings in her evidence when asked about their arrangements.

23. I enquired about why the address for the joint bank account statements was a PO Box and the applicants gave consistent evidence that the sponsor suggested because they move a lot it would be best to have a PO Box.

24. The applicants gave relatively consistent evidence about their respective incomes, days and hours of work and the sponsor’s study obligations.  During the hearing it became apparent that the sponsor has also been involved in the Army reserves for the last five years.  I am troubled by the fact that when I asked the applicant about her husband’s travel, she did not mention this (it was the same question, when put to the sponsor, that elicited this information).  She has filed post hearing submissions including photos of the sponsor in his uniform, but she did not offer this information at hearing and I am troubled by this.

25. At hearing, I raised some concerns about transactions that took place, including a receipt provider where the item was being delivered to an address other than the applicants’ address and a receipt which indicated the applicants bought two queen beds and a single bed in close proximity when they live in a one-bedroom apartment that does not have a single bed in it.  The applicants both suggested these items were purchased for friends and the money paid back at a later time.  I am troubled by this evidence as it suggests the applicants have filed them to bolster the evidence demonstrating pooling of finances for joint household items.  I do accept that their evidence at hearing on this topic was consistent (in that they were not items for their own house but favours for friends).

26. The applicants gave similar evidence about the applicant’s mother paying for their wedding celebration in Vietnam and transactions in the joint account suggesting they were attending a laundromat in 2019.

27. The applicant was evasive about questions relating to payments to fines Victoria which appeared to align with a criminal sentence for theft and cultivating cannabis for which she was convicted in 2021.  The applicant said she could not remember what the AUD500 payments were for.  I do not accept that she could not remember what these payments were for, instead, I consider she did not want to be forthright about her criminal history in case it impacted her migration outcome.  This raises concerns about her credibility.  The sponsor was more reliable with his evidence, saying his wife had ‘trouble sharing about that’ and that he only knew about it more recently.   He gave evidence that she attended the court online in relation to these offences and that he was with  her.  He said these convictions were not a reflection on her.

28. The applicants have filed utility bills – some in joint names and some in only the applicant’s name.  They have filed evidence of online purchases in joint names, but the items appear to be related to the applicant.  Again, I am concerned this evidence may have been filed to bolster the applicant’s case.

29. The applicants gave consistent evidence that they initially lived together with the sponsor’s mother.  The timing of this was inconsistent, however they have clarified in post hearing submissions that they lived at the sponsor’s mother’s house for a period of two years but only the first five-seven months were with the sponsor’s mother as she then moved in with her new partner.      

30. The applicants gave consistent evidence that they have not yet bought a house or had children because they wish to be more financially secure, the sponsor is currently studying, and they will wait until he has completed his study.

31. The applicant has filed post hearing submissions including a binding death benefit beneficiary nomination signed by the sponsor nominating the applicant as 100% beneficiary.

32. I consider the pooling of financial resources and sharing of day-to-day expenses is limited in this case.  They do not have any significant joint ownership of assets; joint liabilities; or any legal obligations owed to each other.

33. I consider the evidence for and against the applicants in relation to the financial aspects of the relationship is finely balanced.

    Nature of the Household

34. Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are matters to be considered when assessing the nature of the household.

35. The applicants have filed evidence (including joint correspondence to the same address) and gave evidence at hearing that they have been living together since late 2017.

36. The applicants gave consistent evidence about their day to day lives, the days and times at which they work along with the sponsor’s study schedule, including how they manage the days when they are both home and he needs to study.  I found this evidence persuasive. 

37. The applicants gave consistent evidence the applicant does most household chores.  The applicants gave relatively consistent evidence about attending a laundromat during 2019 to do their washing.

38. The applicant gave evidence that she would like at least one child and the sponsor gave evidence that he wants two children, but his wife is not keen on having children.  He went on to say that he would like to work towards that and thinks his wife’s reservations are due to his ability to provide (relating to his study obligations).  They gave consistent evidence about the type of contraception used.

39. The applicants gave consistent evidence that they do not want to try to have children until the sponsor has completed his study and they are more financially secure.  They gave consistent evidence about what the sponsor is studying and how far through his course he is.  Their evidence about his future career plans was not entirely consistent.  The applicant did not give evidence about the AUD30,000 savings held by the sponsor in his personal account.

40. As stated above, I am troubled by the fact that when I asked the applicant about her husband’s travel, she did not mention that he has been in the army reserves for the last five years.  She has filed post hearing submissions including photos of the sponsor in his uniform, but she did not offer this information at hearing and I am troubled by this.

41. The applicants gave relatively consistent evidence about their daily meal arrangements and preferences.

42. The applicants gave relatively consistent evidence that they previously owned a dog which they could not take care of and so gave to the sponsor’s mother.

43. The applicants gave consistent evidence about the number and configuration of the rooms where they currently reside and how the sponsor manages his study workload.

44. The applicants gave consistent evidence about their spiritual preferences and attendance at the temple every few months.

45. The applicants have filed many photos and evidence of various travel and activities they have undertaken together. 

46. I place some weight in favour of the applicants in relation to the household aspects of the relationship.

    Social Aspects of the Relationship

47. Whether the applicants represent themselves to other people as being married to each other, the opinion of the applicants’ friends and acquaintances about the nature of the relationship and any basis on which the applicants plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.

48. The applicants have filed many photos of the applicant and the sponsor undertaking shared activities, travel, at home together, out with others (including family, particularly the sponsor’s mother) and photos from their wedding ceremony in Vietnam.  They gave consistent evidence about how many people attended their wedding celebration in Vietnam (the applicant saying 200-250 and the sponsor saying 240-250) and the fact that the applicant’s mother paid for this.  I accept that this is a large, traditionally very public acknowledgement of their marriage and relationship.  However, the applicants’ answers to who the people in the photos were, most particularly the bridesmaids and groomsmen raised serious concerns for me.  The sponsor gave evidence that he would only be able to name one of the five groomsmen by name and that they were family and friends of his wife.  The applicant gave evidence that some of the bridal/groom party were her friends and ‘some are arranged by the organisers of the event’.  I am very troubled by this evidence.

1. Mr Dang gave evidence at hearing that he has known the applicant for six and a half years and met the sponsor through her.  He gave evidence that he sees them regularly either at home or out and that they are a genuine couple.  He was able to ask questions about what sort of meals the couple eat when they go out for meals.

2. The applicants gave consistent evidence at hearing about seeing the sponsor’s mother regularly but gave different evidence about when and where these gatherings occur.  The couple gave consistent evidence about their respective family dynamics. 

3. The applicant’s evidence about the location and day of their engagement and how the sponsor proposed to the applicant.  However, they gave inconsistent evidence about whether he had a ring at the time and inconsistent evidence about where the wedding rings were purchased.   They have filed post hearing submissions in this regard which I did not find persuasive.

4. The applicants have filed a statutory declarations: from the sponsor’s mother dated 20 July 2018 and from Xuan Thin Dinh dated 18 June 2018.  These are considerably dated now but I acknowledge the sponsor’s mother’s consistent evidence that she lived with the couple after their wedding.  They have also filed a statutory declaration from Mr Quang Thinh Dang dated 3 June 2023 who also gave evidence at hearing and was present for their small marriage signing in Australia.

5. I note that the reasons provided for the sponsor’s father and sister not attending the wedding in Vietnam are plausible and was consistent at hearing.    

6. I place some weight in the applicants’ favour in relation to the social aspects of the relationship.

   Nature of the applicant and the sponsor’s commitment to each other

7. The duration of the relationship, the length of time during which the parties have lived together, the degree of companionship and emotional support that the parties draw from each other and whether the parties see the relationship as a long term one are all aspects to be considered in determining the nature of the parties’ commitment to each other.

8. The applicants have been living together and married for over five years.  The applicants gave consistent evidence that they speak in both Vietnamese and English.

9. The applicants gave inconsistent evidence about whether they argue.  I note the post hearing submissions in this regard.  I found the sponsor far more reliable as a witness and consider he was forthright in  his evidence.  I found the sponsor’s level of knowledge and understanding about his wife’s previous trauma from being in an abusive relationship, the impact this has on their current relationship and how the couple manages those dynamics very persuasive.  I found this reflected the level of knowledge and understanding one would expect of an individual in a genuine relationship. 

10. The applicants gave consistent evidence about the sponsor’s mother’s divorce from the sponsor’s father and the impact this has had on the sponsor and his relationship with his family members, stating that the sponsor has aligned more with his mother and his sister has aligned more with their father.  The applicant appeared to be well versed in this regard.

11. I found the evidence the applicants gave about how they manage the sponsor studying in their living room, where the television is also present, persuasive.  The applicant was also able to answer questions about the sponsor’s study in a way that reflected a  thorough understanding of his study circumstances and obligations.

12. The applicant and the sponsor both gave evidence that they plan to buy a house together and have children together.  They appeared to see their relationship as long term.

13. The applicant gave evidence about her traumatic relationship history, prior to meeting the sponsor, in a forthright manner.  She also explained the evidence about her health issues during a visit to Vietnam which the delegate had concerns about.  I found her evidence in this regard persuasive.

14. The applicants appeared to physically comfort each other and displayed a level of closeness during the hearing which seemed indicative of a genuine relationship.

15. I place significant weight in the applicants’ favour in relation to their commitment to each other, in particularly the emotional support they draw from each other.

    Conclusions

16. I have carefully considered all of the evidence before me.  I find the evidence for and against the applicant in this case finely balanced.  I consider it likely that there are aspects of the applicants’ marriage and relationship that have been motivated by securing a migration outcome for the applicant.  I note in this regard that the Full Federal Court has held that people enter into marriages with a variety of purposes and motives.  It is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to material benefit or advancement, as for example with the hope of becoming eligible to reside in a particular country.[14]

    [14]          Re MILGEA and Dhillon [1990] FCA 144.

17. Ultimately, I consider it appropriate to the give the benefit of the doubt to the applicants. I find that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of others and that their relationship is genuine and continuing and that they live together, not separately and apart, on a permanent basis. I am satisfied that the applicant is in a spouse relationship with the sponsor and the applicant therefore satisfies clause 820.211(2).

    DECISION

18. The appropriate course is for this matter to be remitted for reconsideration by the Department.

19. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa: Clause 820.211(2) of Schedule 2 of the Regulations.

    T. Quinn
    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).