Pham (Migration)

[2023] AATA 2642

Pham (Migration) [2023] AATA 2642 (5 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Van Pham

VISA APPLICANTS:  Mr Trung Dinh Nguyen
Miss Quynh Tram Nguyen
Miss Cam Duyen Nguyen

REPRESENTATIVE:  Dr Tung-Bao Ngo (MARN: 0006620)

CASE NUMBER:  1906358

DIBP REFERENCE(S):  BCC2018/3738631

MEMBER:M. Edgoose

DATE:5 July 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.

Statement made on 05 July 2023 at 10:42am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – subclass 309 – genuine concerns about the review applicant being a credible witness – little evidence regarding the financial aspects of the relationship – limited oral evidence regarding the overall social aspects of the relationship – lack of supporting physical evidence – not satisfied that the review and visa applicant have a commitment to each other consistent with a genuine and continuing relationship at the time of application or of this decision – decision under review affirmed 

LEGISLATION
Migration Act 1958, ss 5F, 65, 359
Migration Regulations 1994, r 1.15, Schedule 2, cls 309.211, 309.221

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 on 15 February 2019 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (the Act).

2. The first named visa applicant (the visa applicant) applied for the visa on 6 June 2018 on the basis of their relationship with their sponsor, the review applicant. 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). 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.211(2).

4. The review applicant appeared before the Tribunal on 7 June 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Trung Dinh Nguyen the primary visa applicant, Miss Quynh Tram Nguyen a secondary visa applicant, and Miss Cam Duyen Nguyen a secondary visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The review applicant was represented in relation to the review.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Whether the parties are in a spouse or de facto relationship

7. Clauses 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa 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 to be the spouse of the review applicant who is an Australian permanent resident.

8. ‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the 2 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 visa applicant’s and review applicant’s household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

   Are the parties validly married?

9. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The review applicant provided the Department and Tribunal with a copy of the marriage certificate issued in Vietnam on 2 April 2018. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).

   Credibility of the review applicant

10. It became apparent to the Tribunal during the early stages of the hearing on 7 June 2023 that the review applicant could not fully comprehend the reasons as to why she was at the Tribunal. The review applicant informed the Tribunal that she is illiterate and is not able to read or write Vietnamese or English. She mentioned that she never went to school but currently works as a hairdresser. The review applicant informed the Tribunal that all the documentation submitted when this visa application was initially lodged had been completed on her behalf and that the person filling out the application did not read out to her what the documents were about and that she just signed the documents where she was told to.

11. The review applicant informed the Tribunal that she initially arrived in Australia on 5 August 2013 after being granted a Subclass 309 Partner visa. The review applicant claims that the immigration agency that assisted in her initial Subclass 309 Partner visa application was called Hoa‑Hop Immigration based in Vietnam. The review applicant was subsequently granted a BC100 Partner visa on 21 January 2014 which ceased on 6 December 2018.

12. The review applicant informed the Tribunal that her relationship with her first husband ended in 2016.

13. On 6 December 2018 the review applicant was granted a BB155 Resident Return visa with no end date and therefore it is still in place at the time of this decision.

14. On 6 June 2018 the application for this Subclass 309 Partner visa application was lodged. The visa application forms were completed by a person known only to the review applicant as Ms Phuong. The review applicant claimed that Ms Phuong is well known within the Vietnamese community as the person to go to for filling out and completing visa application forms as she has completed many forms for lots of other people within the Vietnamese community in the past. The review applicant said to the Tribunal that all the documentation submitted when this visa application was initially lodged had been completed on her behalf by Ms Phuong. The review applicant further mentioned that Ms Phuong did not verbally read out to her what the documents were about. The review applicant claims that Ms Phuong just told her where on the documents to sign. The concern for the Tribunal is that Ms Phuong has provided migration advice and assistance to the review applicant without being a registered migration agent. According to the review applicant’s evidence, Ms Phuong is known within the Victorian Vietnamese community as a being a person who provides such services. The review applicant informed the Tribunal that she paid Ms Phuong money for her help/services as a thankyou.

15. Further to this review, the applicant informed the Tribunal that Mr Lap from Vivi Travel helped with the completion of forms when she needed an extension on one of her visas. The review applicant confirmed to the Tribunal that Vivi Travel is her travel agent but she was not sure if they were an official migration agency. The address for Vivi Travel is 78 Alfrieda Street, St Albans. The concern for the Tribunal is that this is a second person who has completed forms on the review applicant’s behalf without her having any understanding of what she was signing, given her being illiterate.

16. The Tribunal has genuine concerns as to whether the review applicant has any understanding or comprehension of the documents that were completed at the time the initial visa application was lodged in this matter given that she stated to the Tribunal that she is illiterate. Therefore, this brings into question whether she as the review applicant/sponsor in this matter fully understood her sponsorship obligations at the time the initial visa application was lodged and her ongoing sponsorship obligations at the time of this decision. Therefore, the Tribunal has genuine concerns about the review applicant being a credible witness in this matter.

    Are the other requirements for a spouse relationship met?

    Financial aspects of the relationship

17. Regarding the financial aspects of the relationship, the review applicant and visa applicant informed the Tribunal that there is no joint ownership of assets; no joint liabilities; no pooling of financial resources; no legal obligations owed to the other party and no sharing of day‑to‑day household expenses.

18. The review applicant informed the Tribunal at hearing that she had recently purchased a house in her name and that the mortgage payments are A$2,500 per month. The Tribunal notes that no physical evidence of the house purchase or mortgage was submitted. Given the lack of supporting evidence from the review applicant regarding recently purchasing a home, the Tribunal places minimal weight on this claim.

19. The review applicant further mentioned that she had recently been given VND500 million by the visa applicant. When converted into Australian dollars, it equates to approximately A$32,164. The Tribunal asked the visa applicant if he had recently given the review applicant VND500 million. He informed the Tribunal that the evidence provided by the review applicant was not current. The visa applicant told the Tribunal that the review applicant had borrowed the VND500 million from Mr Khanh when she was last in Vietnam, and that he, the visa applicant, was responsible for repaying the debt. The Tribunal put this to the review applicant, and she agreed that the evidence from the visa applicant was correct. Given the lack of supporting physical evidence regarding this claimed loan with Mr Khanh, the Tribunal places minimal weight on this claim.

20. The couple informed the Tribunal that the visa applicant runs a snail farm in Vietnam and the review applicant works as a hairdresser. The review applicant sends money from Australia to support the visa applicant in Vietnam. The review applicant claimed at hearing that she is paid A$1,100 per week cash in hand but only tells the visa applicant that she earns A$300 per week as she wants to pay her mortgage. Therefore, the review applicant does not tell the visa applicant the truth about her actual income. The Tribunal acknowledges that the review applicant has sent the visa applicant several money transfers, based on the physical evidence on the Tribunal file. The Tribunal also acknowledges that several hotel receipts were submitted to the Tribunal. Therefore, the Tribunal places some weight on the evidence submitted to the Tribunal.

21. Given that the review applicant only admitted to the Tribunal that she has not told the visa applicant the truth about her income, this brings into question what else the review applicant has not been open and honest about with the visa applicant in this visa application. As mentioned earlier in this decision, the Tribunal has genuine concerns about the review applicant being a credible witness.

22. Overall, the couple has provided little evidence to the Tribunal regarding the financial aspects of the relationship. Given this, the Tribunal is not satisfied that the financial aspects of the relationship demonstrate that the couple is in a genuine relationship. Therefore, the Tribunal places minimal weight on the financial aspects of the relationship.

    Nature of the household

23. The review applicant informed the Tribunal that they have had no children together. The visa applicant has 2 girls from a previous relationship, and they are the secondary visa applicants in this matter.

24. The review applicant informed the Tribunal that she currently lives in her own home with 2 housemates and their 3-year-old child. The visa applicant lives in Vietnam with his 2 daughters. The couple informed the Tribunal that when they have been together, they shared the responsibility for housework, including cooking and dishwashing. They also stayed at hotels on several occasions according to the evidence submitted.

25. Overall, the couple has submitted very limited evidence to the Tribunal regarding the nature of the household. For these reasons, the Tribunal places minimal weight on the nature of the household.

    Social aspects of the relationship

26. The review applicant informed the Tribunal that her family in Vietnam and her work colleagues in Australia know that she is married to the visa applicant. The visa applicant informed the Tribunal that he represents himself to other people as being married to the review applicant given that he has introduced his wife, the review applicant, to his relatives and siblings. The review applicant claims that she organised the wedding reception in Vietnam.

27. The couple mentioned that the opinion of their friends and acquaintances about the nature of the relationship is that they support it. A concern for the Tribunal is that only a few letters of support and statutory declarations were submitted. The Tribunal acknowledges that the 2 secondary visa applicants provided oral evidence at the hearing in support of the relationship.

28. Miss Quynh Tram Nguyen, daughter of the visa applicant and a secondary visa applicant in this matter, mentioned to the Tribunal that she sees the love her father and the review applicant have for each other and that they call each other nearly every day. She further mentioned that she hopes her father and stepmother will be together and that she would like to come to Australia to live with them. Her final comment to the Tribunal was that she is 21 years of age and is currently studying International Business Relationships at the Foreign Language and Information Technology University in Vietnam. The Tribunal gives limited weight to the witness’s oral statement given that she provided little insight into the overall relationship between the visa applicant and review applicant.

29. Miss Cam Duyen Nguyen, daughter of the visa applicant and a secondary visa applicant in this matter, stated to the Tribunal that from her point of view her dad, the visa applicant, and her stepmother, the review applicant, love each other. She further mentioned that every time she sees her dad talking to her stepmother, her dad is crying as he misses her very much. Miss Nguyen told the Tribunal that she and her sister have not been living with their biological mother since she was 3 years of age and that she is currently in Year 11 at high school. Her final comment to the Tribunal was that she wishes for herself, her sister and her dad to be with their stepmother in Australia. The Tribunal having considered the oral evidence provided at hearing is not satisfied that she articulated whether her father, the visa applicant, is in a genuine relationship with the review applicant. Therefore, the Tribunal places little weight on her oral evidence.

30. The review applicant told the Tribunal that in the limited time they have spent together in person, they have planned and undertaken a range of joint social activities. This has included travelling together, visiting families and hosting parties. The visa applicant mentioned that they would go and visit friends together and have coffee. A limited number of photographs were submitted to the Tribunal of the couple and their parties in a variety of locations. The Tribunal accepts that when the review applicant has been in Vietnam, the couple has planned and undertaken a limited number of social activities according to the photographic evidence and the oral evidence provided at hearing.

31. Given the couple has provided minimal physical evidence to support their claims, the Tribunal places limited weight on the evidence regarding the overall social aspects of the relationship.

    Nature of the persons’ commitment to each other

32. The Tribunal has given regard to the oral evidence provided at hearing by the couple in relation to the nature of the persons’ commitment to each other. The couple claimed that they first met via Facebook in March 2016. The review applicant claimed at hearing that she got to know the visa applicant through a friend’s Facebook account. The review applicant referred to this friend as Miss Huong and it was her Facebook account through which she first met the visa applicant. Miss Huong is a long-time friend of the visa applicant and she lives in Vietnam according to the oral evidence provided at hearing by the visa applicant.

33. The review applicant confirmed to the Tribunal that she does not have her own Facebook account as she is illiterate and does not know how to use Facebook. The Tribunal accepts that due to the review applicant being illiterate, she does not have her own Facebook account and does not know how to use Facebook. After meeting the visa applicant on Facebook, the review applicant claims that she started talking to the visa applicant through the social media application Viber. Copies of the review applicant’s phone accounts were submitted to the Tribunal prior to the hearing.

34. During the hearing, the review applicant claimed that her memory was affected due to her taking sleeping pills. The Tribunal notes that there was no medical evidence that the review applicant had been prescribed sleeping medication prior to the hearing. Further to this, no evidence was submitted prior to the hearing that the review applicant suffered from memory loss due to taking sleeping pills. Given the lack of evidence, the Tribunal placed no weight on this claim that the review applicant’s memory was affected due to her taking sleeping pills.

35. On 21 February 2017 the review applicant travelled to Vietnam and met the visa applicant for the first time in person. During this visit, the review applicant was introduced to the visa applicant’s 2 daughters and his mother. The review applicant returned to Australia on 14 March 2017.

36. On 1 October 2017 the review applicant travelled to Vietnam to attend her son’s wedding. It is claimed that during this trip, the visa applicant was introduced to the review applicant’s family. On 14 October 2017 the visa applicant proposed to the review applicant before she returned to Australia.

37. On 9 March 2018 the review applicant returned to Vietnam and it was during this trip that the couple married on 14 March 2018 at the visa applicant’s home. The couple claims to have celebrated their marriage at a restaurant which was attended by 70 guests. The marriage was formally registered in Vietnam on 2 April 2018. The review applicant returned to Australia on 4 April 2018.

38. The visa application was lodged on 6 June 2018 and refused on 19 February 2019 by the delegate. The review applicant then engaged Dr Ngo as her representative. Dr Ngo lodged the application for review with the Tribunal on 18 March 2019. The review applicant informed the Tribunal that she asked Dr Ngo to fill out all of the appeal forms and that she just signed them.

39. The parties claimed that the only time they have lived together was when the review applicant visited the visa applicant in Vietnam.

40. The parties informed the Tribunal that they draw companionship and emotional support from each other by talking to each other every day through the social media application Viber. The review applicant mentioned that she encouraged the visa applicant to remain strong and that one day they will reunite. The visa applicant mentioned that the review applicant has encouraged him to stay strong, to remain focused on his snail farming business and to encourage his children to remain well and to get a very good education. The couple stated to the Tribunal that they see the relationship as a long-term one.

1. Having considered the oral evidence provided at hearing and overall, along with the lack of physical evidence, the Tribunal places minimal weight on the nature of the persons’ commitment to each other.

2. Based on the evidence, the Tribunal is satisfied the parties were married to each other under a marriage that is valid for the purposes of the Act. However, based on the limited oral evidence at hearing and the lack of supporting physical evidence, the Tribunal is not satisfied the parties have a mutual commitment to a shared life as a married couple to the exclusion of all others, that the relationship between them is genuine and continuing and that they do not live separately and apart on a permanent basis.

3. Further to this, the Tribunal has genuine concerns as to whether the review applicant understood her sponsorship obligations at the time the visa application was initially lodged and at the time of this decision due to her being illiterate and not having any of the application forms read out to her. Therefore, the Tribunal is not satisfied that the review applicant was a credible witness in this matter.

4. On the basis of the above, 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.

5. Therefore, the visa applicant does not meet cl 309.211 and cl 309.221.

6. As the visa applicant does not meet cl 309.211 and cl 309.221, the secondary visa applicants do not meet the secondary criterion under cl 309.321.

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

   DECISION

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

   M. Edgoose
   Member