Pham (Migration)

[2018] AATA 4908

Pham (Migration) [2018] AATA 4908 (19 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Thanh Tuyen Thi Pham

VISA APPLICANT:  Mr Nhat Linh Nguyen

CASE NUMBER:  1713761

DIBP REFERENCE(S):  OSF2016/039599

MEMBER:James Lambie

DATE:19 October 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 19 October 2018 at 10:44am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) – Subclass 309 (Spouse (Provisional)) – genuine relationship – parties live in different countries – social aspects – little evidence submitted – inconsistent knowledge about each other– decision under review affirmed

LEGISLATION
Marriage Act 1961 (Cth) ss 5F, 65
Migration Regulations 1994 (Cth) r 1.15A Schedule 2 cls 300.211, 300.221

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 2 June 2017 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 Nguyen) applied for the visa on 7 July 2016 on the basis of his relationship with his sponsor, the review applicant (Ms Pham). 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 Mr Nguyen did not satisfy cl.309.211(1) because, having regard to the matters prescribed by reg. 1.15A, he did not meet the definition of ‘spouse’ for the purposes of s. 5F of the Act.

4. Ms Pham appeared before the Tribunal on 20 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Nguyen.  A quantity of additional documentary material was provided by the parties after the hearing.

5. Ms Pham 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 parties are in a genuine spousal relationship for the purposes of the legislation.

   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. Material was produced to show that Ms Pham travelled to Vietnam on 21 June 2015, that a wedding reception was held on 5 July, a wedding ceremony was held on 14 July and a marriage certificate was executed on 20 July 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. Ms Pham and Mr Nguyen met in about July 2013. Mr Nguyen had arrived in Australia some 4 years earlier, in April 2009, on a student visa accompanied by his father.  He was to undertake high school studies in Brisbane. Both of their visas were cancelled on 22 September 2009 for Mr Nguyen’s non-commencement of his studies.  Neither Mr Nguyen nor his father returned to Vietnam after their visas were cancelled:  Mr Nguyen’s evidence was that he travelled with his father to Townsville to work on a farm shortly after he arrived in Brisbane and that he returned to Brisbane in July 2013, at which time he met Ms Pham.

12. I heard from Mr Nguyen on the circumstances of his visa cancellation and his subsequent activities in Australia, but I do not factor that material into my consideration of the relationship between him and Ms Pham, except where expressly referred to below.

13. The evidence of both parties is that they first met at a park in Forest Lake.  They maintained contact and started a relationship in about January 2014.  At about that time, Mr Nguyen advised Ms Pham that he was in Australia unlawfully.  Because his situation was somewhat precarious, Ms Pham offered him accommodation in her family home.  From about March 2014, Mr Nguyen rented a room at the home of Ms Pham’s family, but the parties kept their relationship secret.  Ms Pham’s mother and brothers believed Mr Nguyen to be a friend of Ms Pham’s but nothing more.  Mr Nguyen was arrested in February 2015 and was deported from Australia on 4 March 2015.

14. As noted above, Ms Pham travelled to Vietnam for the purposes of the marriage from June to July 2015.  She returned to Vietnam in January-February 2016 and February-March 2017.  The visa application was lodged on 30 June 2016.

15. In assessing whether the parties are in a married relationship for the purposes of s. 5F(2), I have considered the criteria specified in reg. 1.15A(3), namely the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the parties’ commitment to each other.

    Financial aspects of the relationship

16. In assessing the financial aspects of the relationship, I have considered the joint ownership of any assets, any joint liabilities, the extent of any pooling of financial resources, whether either of the parties owes any legal obligations in respect of the other and the basis of any sharing of day-to-day household expenses.

17. The delegate had before her copies of two money transfer receipts showing that a total of $1500 had been sent from Mr Nguyen to Ms Pham between 17 November and 24 November 2015.  There was no evidence placed before me of any other money transfers between them.  The parties were apparently gifted a block of land in Vietnam as a wedding present.  Ms Pham did not mention it when questioned by the delegate.  Before me, she said that the gift had slipped her mind because it wasn’t something she planned to keep.  She believed it, along with some money and gold received as wedding presents, had been sold to pay for the wedding.  Mr Nguyen’s evidence was that it was a small plot of land which he has mortgaged and now rents to an uncle for about VND5 million (about AUD$300) per month.  There was no evidence of any other financial assistance from one to the other.

18. As the parties live in separate countries, there is an obvious difficulty in combining their financial affairs, acquiring joint assets and pooling financial resources.  While I give this factor little weight in these circumstances, I have noted the very limited communication and knowledge they seem to have of each other’s financial affairs.

    The nature of the household

19. In assessing the nature of the household, I have considered any joint responsibility for the care and support of children, the parties’ living arrangements and any sharing of responsibility for housework.

20. As the parties live in separate countries, I acknowledge the difficulty in demonstrating that the nature of the household is that of two people in a genuine relationship.  The evidence I was asked to consider consisted of a temporary household registration at Mr Nguyen’s address in Dong Thap, Vietnam, for the period 22 June to 27 July 2015 and some hotel receipts for some of the periods of Ms Pham’s visits in 2015, 2016 and 2017.  The parties submitted that Ms Pham undertook some traditional household chores and Mr Nguyen some of the heavier chores over this period and that Ms Pham made some contribution to food expenses.  There is little that can be drawn from this in an evidentiary sense, other than to accept that the parties have spent some time together.  In these circumstances, I give little weight to this factor.

    The social aspects of the relationship

21. In assessing the social aspects of the relationship, I have considered whether the parties represent themselves to other people as being married to each other, the opinion of friends and acquaintances about the nature of their relationship and any basis on which the parties plan and undertake joint social activities.

22. One of the unusual aspects of this relationship is that, on the parties’ accounts, it began and was maintained for some time in secret because they believed Ms Pham’s mother would disapprove.  It is also notable that no-one from Australia attended the wedding.  Ms Pham’s explanation was that she did not dare raise the matter with her mother.  However, her brother and two of Mr Nguyen’s friends apparently knew of the relationship at this time and it is strange that they were not at least invited.  Ms Pham offered no evidence from any friends or acquaintances relating to the wedding, nor any relating to the couple’s married life.  The form 888 submitted by her brother refers to a romantic courtship during 2014 (when the relationship was secret) but does not claim any personal relationship with Mr Nguyen as his brother-in-law.  Ms Pham claims she has no friends close enough to attest to the relationship, which strikes me as implausible given the length of her residence in Australia and the extensive post-secondary education she has undertaken.  One does not need to be particularly close to one’s colleagues or acquaintances to be known to them as a married person. The striking thing about the couple’s evidence is that, for the most part, any knowledge of the relationship seems confined to Mr Nguyen’s friends and family.

23. With the exception of the formal wedding photographs, the majority of the photographic material produced consists of ‘selfies’, which have little evidentiary value.  There are a small number of photographs from Vietnam with members of Mr Nguyen’s family and a couple purporting to show some members of Ms Pham’s Vietnamese relatives.  In the absence of supporting statements from these persons, I can give them only very limited weight.

24. Given that the relationship has, on the parties’ account, been extant for some 5 years, there is surprisingly little material of any probative value attesting to an enduring spousal relationship in the eyes of their friends, family and the wider community.  In making this observation, I have had regard to some sparse Facebook communications between Mr Nguyen and his family and the absence of any corresponding communications between Ms Pham and her friends and family.

    The nature of the parties’ commitment to each other

25. In assessing the nature of the parties’ commitment to each other, I have considered the duration of the relationship, the length of time they have spent together, the degree of companionship and emotional support they draw from each other and whether they see the relationship as long-term.

26. As noted above, the parties claim to have met in about July 2013 and to have commenced their relationship in about January 2014.  They have produced a small number of photographs purporting to have been taken some time during the period January 2014 to March 2015 (when Mr Nguyen left Australia), but they provide no date or other context to allow me to draw any inference other than that they spent some time in each other’s company in Australia.

27. Since June 2015, Ms Pham has spent some 99 days in total in Vietnam.  Together with the material referred to in paragraph 20 and a small number of photographs, there are some Facebook exchanges referring to time spent together. However, the material is rather sparser than might be expected and there is very little detail, whether photographic or narrative, about how they spent their time.

28. The parties produced a number of screenshots of Facebook communications with English translations.  A number of additional pages in Vietnamese only were also produced, to which I can accord no weight other than to note that the parties were apparently in communication.  The dates are not always discernible.  There is an excerpt of Ms Pham’s Facebook Messenger account which shows 3 video chats for the month of September 2017.  There are some samples of text messages and video calls in other applications.  I give this material some weight as evidence that Ms Pham and Mr Nguyen communicate with each other with some regularity.

29. I note that the delegate’s decision lists several inconsistencies in relation to the parties’ knowledge of each other, in particular that Ms Pham did not know that Mr Nguyen had relatives living in Australia, or of a joint asset given as a wedding present.  They were also inconsistent as to the extent of Ms Pham’s family’s knowledge of the relationship and as to Ms Pham’s most recent work.  I received submissions from Ms Pham’s agent on the inconsistencies and made inquiries of both parties at the hearing.

30. At the hearing, the parties gave mostly consistent evidence about themselves and each other.  There were inconsistencies in Mr Nguyen’s evidence about Ms Pham’s studies in medical sonography which were likely due to unfamiliarity with the terminology and perhaps some interpretation problems.  They both expressed that they saw the relationship as long-term and were hoping to establish a household together.  Although there is little in the way of corroborating material and I consider that the parties have given the matter of possible inconsistencies a great deal of attention since the delegate’s decision was delivered, I give some weight to this evidence.

    Other circumstances

31. As adverted to in paragraphs 11 and 12 above, I have had regard to the circumstances in which Mr Nguyen entered Australia in 2009 and departed in 2015, during which period he worked unlawfully and in breach of his visa conditions.  I have also had regard to the short period that elapsed between his removal from Australia and the marriage.  These circumstances may give rise to an inference that, at least on the part of Mr Nguyen, the marriage has been contrived for the purpose of Mr Nguyen obtaining permanent residence in Australia and militate against the conclusion that it is his intention to remain in the relationship beyond the requirements of achieving that purpose.  I intend to balance the weight to be given to that inference against the evidence of the genuineness of the relationship.

32. In summary, I have given little weight to the financial and household aspects of the relationship owing to the parties’ geographical separation. This means that I must give significant weight to the evidence relating to the social aspects of the relationship and the nature of the parties’ commitment to each other. As I indicated in paragraph 24, the evidence of the social aspects of the relationship is sparse and, in the circumstances, deficient to the extent that it weighs against a finding of a genuine spousal relationship. As to the nature of the parties’ commitment to each other, I have given some weight to the communications records and the parties’ knowledge of each other. However, this evidence is little better than equivocal depending, as it does, on communications between the two with little support in the way of extraneous material. I have also considered the extent to which I might balance the considerations referred to in paragraph 31. However, having regard to the reg. 1.15A(3) criteria, I do not consider that the evidence before the Tribunal can support a conclusion pursuant to s.5F(2)(b)-(d) that the parties have a mutual commitment to a shared life to the exclusion of others, that they have a genuine and continuing relationship and that they intend to live together on a permanent basis. Therefore, it is unnecessary to apply any inferences arising from Mr Nguyen’s immigration history.

    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 at the time of this decision.

33. Therefore the visa applicant does not meet cl.309.211 or cl.309.221.

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

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

    James Lambie
    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).