Pham (Migration)

[2019] AATA 2800

Pham (Migration) [2019] AATA 2800 (7 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Hien Pham

VISA APPLICANTS:  Mr Huu Tinh Nguyen
Ms Thi Nga Nguyen
Ms Thu Hien Nguyen

CASE NUMBER:  1700734

DIBP REFERENCE(S):  OSF2016/039146

MEMBER:Denis Dragovic

DATE:7 June 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 07 June 2019 at 11:20am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – credibility issues – lack of details – inception of relationship – marriage proposal – sponsor’s knowledge of visa applicant’s children – Household Registration Book – ex-wife retained same address as visa applicant – details of wedding planning – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 309.211, 309.221

CASES
He v MIBP[2017] FCAFC 206

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 10 November 2016 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 3 February 2016 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) and 309.221 because the delegate found the the applicant and sponsor are not in a genuine and continuing spousal relationship, nor that the applicant and sponsor have a mutual commitment to a shared life together to the exclusion of all others.

4. The review applicant appeared before the Tribunal on 2 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Kim Pham, the sponsor’s daughter.

5. The review applicant (sponsor) was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant is at the time of application and decision for the purposes of the Act the spouse of the sponsor.

   Whether the parties are in a spouse or de facto relationship

8. Clause 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 citizen.

9. ‘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 visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP[2017] FCAFC 206.

   Are the parties validly married?

10. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicants submitted a marriage certificate from the Socialist Republic of Vietnam showing that they were married on 16 November 2015. 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).

    Are the other requirements for a spouse relationship met?

11. The sponsor was first asked questions about her relationship and subsequently the visa applicant was called from the Tribunal premises by phone. Any adverse information that was provided by the visa applicant was subsequently and in appropriate form put to the sponsor.

    Background to the relationship

12. The relationship between the applicant and the sponsor is claimed to have started when the review applicant’s mother passed away in 2010 and the sponsor travelled from Australia to Vietnam. There she met with her sister and her sister’s husband (the visa applicant and now spouse of the sponsor) who she had known since their wedding. At that stage her sister was still married to the visa applicant but they were going through difficulties in their relationship. The sister and her then husband had lost a son which led to the beginning of the problems between them. It was claimed that the sister also started seeing another man. At this stage during the sponsor’s travel to Vietnam she would visit their house and it was claimed that she would console the visa applicant over his failing marriage. The sponsor went back again to Vietnam for her mother’s memory day in either 2011 or 2012, she wasn’t sure which, and during this visit she and her sister’s husband continued to talk to each other. At this stage the sponsor was also married. She divorced in 2013 from her husband.

13. On 24 September 2014 the visa applicant and the review applicant’s sister had their marriage legally dissolved, though it is claimed that legal proceedings for their divorce began earlier in the year.  The sponsor visited Vietnam in September 2014 leaving on the day that the divorce between her sister and the visa applicant was official. During this visit it is claimed that they decided to get married. Having viewed a copy of the divorce papers I accepted the sponsor and his ex-wife are legally divorced.

14. The sponsor claims that she asked the visa applicant whether he loved her and he simply smiled. She said that she can’t remember who proposed. I asked her what happened between 2014 when they decided to get married and 2015 when they were married. She didn’t have any information to provide to the tribunal of this period of nearly a year. When I asked the same questions of the visa applicant he only recalled limited information claiming that she proposed to him by saying that she really liked him. He said that she had proposed on the island of Cong Dong. I asked what he did between the period of deciding to get married and when they got married in November 2015. He said that he proposed to her. He then corrected himself that she proposed but then they went to another island where he proposed to her, Duan Chau. I asked to clarify whether he had proposed or not. He responded that he loved her.  I have serious doubts about the claims the applicants have made regarding how their relationship began. I find it difficult to accept that the sponsor would forget that she proposed to him. The visa applicant’s responses were stilted and at times appearing to be made on the run. His claims that she proposed and then he proposed were not convincing.

15. I put to the sponsor under s.359AA the visa applicant’s information that she, the sponsor, had proposed to the visa applicant. She responded that she did propose but she could not remember exactly.

16. I am also concerned about the complete lack of detail of how they spent their time between when they decided to get married which is claimed to be in September 2014 and when they were married in November 2015. Despite being asked, no information was forthcoming. In their earlier submissions the applicants claimed that after the sponsor returned to Australia in 2014 she ‘actively’ contacted him on his phone. In a post hearing submission the applicants provided phone records for the period of September 2014 to November 2015. These show regular communication on a landline to the visa applicant’s house where his ex-wife, the sponsor’s sister, is recorded to still have resided at least until October 2015.

17. I note, though, that based upon the phone records submitted communication on the mobile phone number the visa applicant had provided in a submission (Dept. f.144) only began after the wedding on the 11 November 2015. There was no communication on his mobile phone between September 2014 when they decided to get married and November 2015. I note that no other mobile phone number appears on the phone records for the one year period requested by the Tribunal other than two calls on 14 July to a mobile phone ending XXX-234 (Tribunal file f.105).

18. It is possible that the visa applicant purchased for the very first time a mobile phone after the wedding and that the communication via the landline was with him. It is also possible that the communication could have been between two sisters (see paragraph [34] regarding evidence of sister’s residence).

19. Due to inconsistent answers related to who proposed, a complete lack of information about their activities during their first year as a couple leading to questions of credibility and noting that the ex-wife continued to live with the visa applicant at least through to one month prior to the applicants’ wedding I favour the explanation that the sisters were in communication during the period prior to the wedding and as such the phone records do not support their claims of communication. Overall, I find that the circumstances surrounding the formation of their purported relationship are contrived and do not accept the events they claimed to have occurred between each other.

20. It is not in dispute that the sponsor then returned to Australia and a month later visited Vietnam again and legally married her sister’s now ex-husband on the 8 November 2015 (registered on the 16 November). On the 24 November the visa applicant’s ex-wife signed a statement consenting for the children to live with the visa applicant in Australia.

21. The visa applicant then applied for a partner visa on the 3 February 2016.

    Financial aspects of the relationship

22. As evidence of joint ownership of assets the applicants had submitted a Betta Home Living receipt dated 25 September 2017 for a desk fan valued $59.99 purchased in the name of Nguyen Huu Tinh Pham Yhi Hien at [Address 1] (AAT f.74) and a joint purchase of a cooler also from Betta Home Living (AAT f.112). At the hearing the sponsor stated that they are poor and as such don’t have any assets.

23. As evidence of joint liabilities in a submission dated 13 November 2018 the representative explained that the sponsor has added the visa applicant to her bills in anticipation of the applicant coming to Australia. The Tribunal received utility bills addressed to Thi Pham and Tinh Hiu Nguyen at [Address 1], including an AGL gas account due 19 November 2018 (AAT f.75) and an AGL electricity account due 24 September 2018 (AAT f.73). I asked the sponsor why she put her husband’s name on the account if he was not there to make any meaningful contribution. She responded that people had told her that if you don’t have anything to show then at least they could show that. She added that she had thought about putting his name as a joint owner of the car she owns but was not legally allowed to do that.

24. Regarding the extent of the pooling of the applicants’ financial resources the applicants admitted to not having joint bank accounts but claimed that the sponsor sends money to the visa applicant. In the submission dated 13 November 2018 the representative explained that the visa applicant and sponsor do not share a bank account because they currently reside in different countries. The Tribunal received evidence that Thi Hien Pham has made the following money transfers to Nguyen Huu Tinh:

    ·$179 on 19 September 2018 (AAT f.76)

    ·$287 on 6 April 2018 (AAT f.76)

    ·$282 on 11 January 2018 (AAT ff.76; 75)

    ·$276 on 9 December 2018 (AAT f.75)

25. In post hearing submissions evidence was received of earlier transfers:

    ·$258 on 20 January 2016

    ·4,500,00VND (current conversion $278) 26 March 2016

    ·$375 on 30 May 2016

    ·8,010,088VND (current conversion $495) undated

26. The applicants do not claim to have any legal obligations owed to each other.

27. With regards to the sharing of household expenses the applicants submitted that when the sponsor visits she stays with the visa applicant in his household along with his two daughters and mother but there is no claim or evidence of expenses being shared during those visits. Regarding their household in Australia, there is evidence of joint electricity and gas bills issued in September 2018 and November 2018, however the representative’s submission dated 13 November 2018 explained that the visa applicant was added to the accounts in anticipation of his coming to Australia and there is no evidence that he contributes to the payment of these accounts (AAT f.78).

28. I have considered the financial aspects of the relationship and note that there is limited evidence to support the claims for a genuine relationship. The evidence of joint assets and liabilities is negligible as placing a name on a utility bill or buying a fan and cooler in both names does not indicate co-mingling of financial responsibility. The financial transfers to Vietnam are limited but I acknowledge that the sponsor has limited financial means. They don’t have any legal obligations and there was no evidence of practical sharing of household expenses other than both names being on bills or the sponsor staying at her husband’s house. Having said that, the sponsor did state that they were poor and as such they did not have many assets, she did note that she had thought about adding him to the ownership of her car but that it was not legal and I acknowledge that by living apart in two countries there are limited opportunities for people of limited economic means to show shared financial responsibilities. For this reason when considered overall I place limited weight against the genuineness of the relationship based upon the lack of financial aspects of the relationship.

    Nature of the Household

29. The visa applicant has two children for whom the sponsor is both the step-mother and aunt. The sponsor has two children of her own one of whom appeared before the tribunal as a witness. The mother of the visa applicant’s two children provided a statement providing consent for the children to live in Australia with their father (Dept f.136) and both were included as dependant applicants in this visa application (Dept ff. 50; 40; 6).  In her statutory declaration dated 12 November 2018 the sponsor stated that the visa applicant has a close bond with her daughter, Lien Kim Pham, and they speak on the phone (AAT f.42).

30. In an effort to appreciate the level of engagement between the sponsor and the second and third named applicants I asked the sponsor details about her two step-children. She did not know their birthdays. She knew that the younger child was going to school, though wasn’t sure which year suggesting it was either year 7 or 8. She didn’t know the name of the school. The children’s father, the visa applicant, confirmed that the child is in year 8. I asked for more details about the children in response to which she said that her husband would say they are very nice and very kind and that was it. I asked if he ever told them about what makes them sad or happy or about a birthday they had. She said that he says a lot but she forgot.

31. Regarding living arrangements, the sponsor currently resides in Australia and the visa applicant lives in Vietnam. Statutory declarations by the visa applicant, sponsor, and the visa applicant’s sister advise that the sponsor visited Vietnam twice in 2018 and resided at the visa applicant’s home during her trips (AAT ff.42; 41; 39). Evidence received in relation to the applicants’ living arrangements included:

    ·Boarding passes and a flight itinerary indicating that Thi Hien Pham travelled from Melbourne, via Bangkok, to Hanoi on 21 February 2018 and from Hanoi, via Bangkok, to Melbourne on 18 and 19 March 2018 (AAT f.47-46)

    ·Boarding passes for flights on 11 October 2018 and a flight itinerary indicating that Thi Hien Pham travelled from Melbourne, via Ho Chi Minh City, to Hanoi on 11 October 2018 and from Hanoi, via Ho Chi Minh City, to Melbourne on 28 and 29 October 2018 (AAT f.45)

    ·Temporary Residence Registration Form for Foreigners stating the sponsor’s registered address from 18 October 2018 to 28 October 2018 whilst in Vietnam  was the visa applicant’s home (AAT f.44; 43).

32. I noted to the sponsor that the Temporary Residence Registration Form for Foreigners for the October 2018 visit lists the purpose of her stay as ‘family visit’ (translation provided by the applicants) or ‘visit relatives’ (translation provided by the interpreter at the hearing). I asked why it would say visiting relatives or family if she was staying with her husband. The sponsor said that she didn’t pay much attention to those details.

33. The Department file also includes a Temporary Residence Registration Form for Foreigners relating to the sponsor’s trip to Vietnam commencing 13 October 2015 when the wedding took place. According to this document it appears the sponsor resided with Pham Thi Gai (her sister) from 29 October 2015 to 13 January 2016 (Dept. f.81).

34. The Household Registration Book (Ho Khau) which was provided by the applicants (Dept. f.111) was dated 7 October 2015 and lists the visa applicant’s ex-wife as continuing to live in the same home as the visa applicant after their claimed separation and subsequent divorce (Dept f.177). When this was put to the sponsor she said that in Vietnam people retain the address on their household registration card until they are required to change it for some reason. She said that her sister would continue to visit the mother-in-law who continued to live there. I put to her that the Ho Khau is about where you live and not where you visit. I noted to the sponsor that she had said that prior to their relationship beginning in late 2014 her sister, the visa applicant’s ex-wife, was not living in the same house. Despite having moved out and despite raising a new household registration card on 7 October 2015 from the authorities the sister/ex-wife still appears on it. The visa applicant said that his ex-wife had left their house in 2010. He explained that they didn’t want to change it because they thought it would impact the children adding that a name remains on the Ho Khau until a person moves to another house which they own and his ex-wife doesn’t own a house. I put to him that this doesn’t sound accurate considering other family members live in their house but don’t own it.

35. The sponsor claims that she does the cooking and cleaning and looks after her mother-in-law when she visits Vietnam. The Tribunal received photos from the sponsor’s trip to Vietnam in October 2018 depicting the visa applicant and sponsor shopping together and completing household chores together such as cleaning, cooking and arranging furniture (AAT ff.82-79).

1. Both applicants have children. The sponsor, though, knew little of her step-children including basic details such as birthdays or the name of the school. When asked about what made them sad or happy or to describe a birthday she could not remember. This leads me to find that the extent of joint responsibility and care and support of children is minimal even when taking into consideration the circumstances of living apart. I accept that the visa applicant has a close bond with the sponsor’s daughter, Lien Kim Pham, and they speak on the phone. As the visa applicant is both her uncle and step-father, and therefore the bond could have grown from either strand of the relationship, I place some weight in the applicant’s favour upon this claim.

2. I note that the sponsor visited Vietnam from 4 September to 24 September 2014. I put to her that the visa applicant was still married at the time while she was claiming to have started the relationship. She said that the visa applicant and his ex-wife had separated earlier and that their relationship had not overlapped. But this evidence is contrary to the Household Registration card, which was provided by the applicant to the Department, dated October 2015, and still lists the visa applicant’s ex-wife as living with her ex-husband after the new relationship was claimed to have started. The sponsor visited Vietnam again in October 2015 and her foreigner registration form states that she lived with her sister rather than her then fiancé/husband despite according to her evidence at the hearing her sister having already moved out of the home. I accept that this could be a social norm to live separate prior to being married and as such place less weight on it. Regarding the household registration card the sponsor argued that they had simply not updated the form. But the fact that the household registration card was dated October 2015 indicates that the contents of the card were true at that time though it is possible that the visa applicant had simply lied to the Vietnamese government. Overall, I find that the household registration card reflects accurately the living situation at the time it was created which shows the ex-wife still living with the visa applicant which in turn leads into question the credibility of the applicants who claimed that the ex-wife had moved out and undermines their claims of the relationship with the ex-wife having broken down.

3. In addition, the earlier registration form for foreigners notes the purpose of the sponsor’s stay being to visit family or relatives. While I accept that it is possible that visiting your husband is family and that could be the correct translation the other translation of visiting relatives would add doubt as such I place little weight in favour of the applicants’ claims arising from the registration form  based upon the nuanced interpretation. Furthermore, I place little weight on the photos of the applicants doing household chores for the reason that these can be easily staged. I similarly give little weight to the claims that the sponsor does some of the household work. Overall, I have considerable doubts over the genuineness of the relationship for reasons of the nature of the household.

   Social aspects of the relationship

4. The applicants claim to represent themselves to other people as being married. They claimed that their wedding was attended by family, friends, and neighbours (Dept f. 143). The Departmental record states that the visa applicant claimed that their wedding was attended by the sponsor’s sister, Pham Thi Gai, the sponsor’s brother Pham Huu Duc, and their children. At the hearing he said that members of his family also attended including his mother, brother Nguyen Thanh Tam, sister Nguyen Thi Nhung, and their children. Post hearing photos show a wedding with upwards of 40 people with the possibility of more in other areas of the restaurant.

5. At the hearing I asked about the wedding and specifically the planning for the wedding. She could not provide any details about it. The sponsor said that there was some shame to their marriage and that is why her wedding party was very small. She listed from her side her sister, brother, niece and nephew. I put to her that both of her remaining siblings in Vietnam came to the wedding and asked how it was embarrassing if both came. She said that she and her husband would be ashamed if they hadn’t invited them. The other people who attended included her brother-in-law and sister-in-law and his nieces and nephews.

6. The visa applicant’s second sister, Nhung Thi Nguyen, has provided an undated statement saying that the visa applicant and sponsor married on 8 November 2015 and it is her opinion that their relationship is genuine and ongoing (AAT f.39). At the hearing I confirmed that no one else has written in support of the genuineness of their relationship.

7. The sponsor’s daughter was a witness at the hearing. She said that she believes the relationship to be genuine. She claimed to have travelled to Vietnam and saw the visa applicant there, though she stayed at her aunt’s place rather than with him. She did not attend her mother’s wedding. When I asked why, she simply responded that she couldn’t go but would not disclose a reason.

8. I asked about their social activities. The sponsor told the tribunal that for entertainment they would usually go to a pagoda, or travel to an island, Ha Long Bay or to the mountains. She didn’t indicate, despite repeated questioning, that she did anything in the evenings. She said that they sometimes drove to Hanoi and would enjoy instant noodles there. When pressed she said that they would go to the market to buy food or shopping.

9. The Tribunal received photos from the sponsor’s trip to Vietnam in February 2018 depicting the visa applicant, sponsor, and the visa applicant’s daughter at Hanoi Airport together (AAT f.78). The Tribunal received photos of the applicants at the Hoang Gia Park (Ha Long Bay) in October 2018 (AAT f.82). Also received were photos from the sponsor’s trip to Vietnam in October 2018 depicting the visa applicant and sponsor with the visa applicant’s daughter, nephew and mother at a family gathering at the visa applicant’s brother’s house, and the visa applicant, the sponsor and the visa applicant’s daughter cooking together at the visa applicant’s home (AAT ff. 81; 79).

10. The applicants claim to have a limited social life and as such the opportunities to present themselves to others as a couple are minimal which I accept is possible. In addition, I acknowledge that they have limited financial resources that in turn constrain their ability to take holidays on which most people take photos which would be considered more probative evidence. For these reasons I place no weight on the lack of evidence. I accept that there was a wedding party which included members of both sides of the family but give this limited weight as it is easy to stage. Alternatively, the lack of any information on the preparatory stages leading up to the wedding (see also background section) and only one letter in support of the genuineness of their relationship along with one daughter’s evidence that she could not explain why she did not attend her mother’s wedding, makes me on balance doubt the genuineness of the relationship based upon the social aspects.

    Nature of persons' commitment to each other

11. The visa applicant is the former husband of the sponsor’s sister. They claimed to have met in 1999 when the sponsor visited her sister during the Vietnamese Traditional Lunar New Year. They claimed to have grown closer in 2010 when the sponsor returned to Vietnam because her mother died and during this period she provided consolation and encouragement to the visa applicant whose marriage was breaking down. They married in 2015 and claim to continue to be in a genuine relationship.

12. Regarding companionship and emotional support they draw from each other the applicants claimed in their statutory declarations dated 12 November 2018 that they talk on the phone 3-4 times a week. The sponsor notes that they mainly talk about their families, their day-to-day activities and how much they miss each other (AAT ff.42-41). In the submission dated 13 November 2018 it is claimed the phone records provided show the sponsor calling the visa applicant frequently, at least three to four times a week (AAT f.78). In support of this claim the applicants provided Thi Hien Pham’s Vodafone bills issued on 9 March 2017, 9 April 2017, 9 May 2017, 9 June 2017, 10 July 2017, 9 August 2017, 12 September 2017, 11 October 2017, 9 November 2017, 9 December 2017, 11 January 2018, 10 February 2018, 9 March 2018, 11 May 2018, 9 June 2018, 10 July 2018, 9 September 2018 and 9 November 2018 (AAT ff.72-48).

13. The applicants claimed that on the sponsor’s trip to Vietnam of 13 October 2015 to 30 November 2015 they visited the sponsor’s mother’s grave and after their wedding they visited Linh Son Pagoda, Hoan Kiem Lake (Hanoi) (Dept ff. 144-43; 140-139).

14. At the hearing the sponsor said that she hopes that when she is old and sick he will look after her. She said that they talk on the phone about current affairs, crime and other things on the news. I asked the sponsor to tell me more, what makes him sad, what makes him laugh, whether they were religious or any movies or music that he liked. She didn’t offer a response other than mentioning that he liked electronics as a hobby and watched soccer on television. I asked what her husband’s favourite team was, she didn’t know. When I asked the sponsor what his favourite food was and what he worked as she was able to correctly answer the questions based upon the evidence provided by the visa applicant when interviewed.  

15. The applicants claim to see the relationship as long-term. The sponsor states in her statutory declaration dated 12 November 2018 that they have a strong bond and their love continues to grow, she transfers money overseas to the visa applicant, and they stay together when she visits him in Vietnam (AAT f.42). In his statutory declaration dated 12 November 2018 the visa applicant claims their love continues to grow and they have a strong connection and bond. The statement expresses how much he misses his wife and longs to be with her and her family in Australia (AAT f.41).

16. At the time of the hearing the applicants spoke of how they saw themselves helping each other into their old age. The sponsor said that she would move to Vietnam if the visa process would not allow her husband to come to Australia. When I asked him, he said that they had not talked about it. I then put to the sponsor under s.359AA this discrepancy to which she responded that he forgets. I have doubts over the veracity of such claims. It would be reasonable to believe that a couple in a genuine relationship would be discussing their future plans including if a negative outcome was received for their visa. That he would forget seems improbable.

17. The sponsor claims to have undertaken a socially shameful step by marrying her sister’s ex-husband. This is a serious decision that would expect to be accompanied by substantial consideration. Instead, the evidence presented is fraught with questions. There is uncertainty over who proposed to whom, there is no evidence on what happened between the period of deciding to marry through to getting married. This undermines the nature of the commitment they are claiming to have. Their answers to questions about their reliance upon each other were unconvincing and that something as important as discussing what would happen if the visa process did not go in their favour to be forgotten adds further doubts. For these reasons and general concerns over the applicants’ credibility I have placed little weight on their limited statements on how they see the future of their relationship ([50]-[51]). Overall, I have doubts about the applicant’s claims of being in a genuine relationship based upon the nature of their commitment to each other.

18. I have considered collectively the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the persons’ commitment to each other. In considering the conclusions of each when considered collectively the Tribunal is not satisfied that the requirements of s.5F(2)(c) are met at the time the visa application was made and the time of this decision. Therefore the visa applicant does not meet cl.309.211(2) and cl.309.221.

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

20. In relation to the second and third named applicants, the Tribunal finds that because at the time of application the applicant and the sponsor were not spouses for the purposes of the Act, neither the second nor third-named applicants can meet the criteria for a Subclass 309 visa as members of the family unit of a person who has satisfied the primary criteria.

21. In addition, the Tribunal finds that neither of them meets the primary criteria for the grant of the visas.

22. Given these findings, the second and third-named applicants do not satisfy the criteria for the grant of the visas and the Tribunal must affirm the decisions under review in relation to these applicants.

    DECISION

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

    Denis Dragovic
    Senior 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).