Pham (Migration)

Pham (Migration) [2018] AATA 2464 (21 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Chau Sy Giang Pham
VISA APPLICANT:  Mr Van Lon Nguyen
CASE NUMBER:  1620683
DIBP REFERENCE(S):  BCC2016/1235846
MEMBER:Jennifer Cripps Watts
DATE:21 June 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa.
Statement made on 21 June 2018 at 3:56pm

CATCHWORDS
Migration – Partner (Provisional) (Class UF) – Subclass 300 (Prospective marriage) – Mutually committed relationship – Long distance relationship – Photographic evidence provided – Phone record provided– Intention to live together as spouses – Engagement party in Vietnam – Planning wedding for a number of years – Credibility – Whether the visa applicant still in a relationship with ex de facto partner – Child with ex-partner – Conflicting evidence of who the visa applicant was living with in 2012/2013 – Financial aspects – Money transfers to the visa applicant – Partner visa used to help achieve a migration outcome – Practice and Procedure – Complaint and request for recusal by representative– Hearing was postponed with justification – Decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 5F, 65, 359AA
Migration Regulations 1994 (Cth), rr 1.09A, 1.15A Schedule 2 cls 300.216, 300.221
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 21 March 2016. At the time the visa application was lodged, Class TO contained only one subclass: Subclass 300 (Prospective Marriage). The criteria for a Subclass 300 visa are set out in Part 300 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. Relevantly to this matter the primary criteria include cl.300.216, whether the parties genuinely intend to live together as spouses.
The delegate refused to grant the visa on 14 November 2016 on the basis that the visa applicant did not satisfy cl.300.216 of Schedule 2 to the Regulations because the delegate as not satisfied, on the evidence, that the parties intend to live together as spouses.
The review applicant appeared before the Tribunal on 7 November 2017 to give evidence and present arguments. The hearing opened, but was adjourned after a large bundle of documents was handed up and that required consideration. The member did not feel that there would be time to review the documents and conduct the hearing within the time set down and the Tribunal adjourned and scheduled a resumed hearing (“the hearing”), by agreement with the applicant, three days later on 10 November 2017. At the hearing, the review applicant appeared before the Tribunal and the Tribunal also received oral evidence from visa applicant by phone from Vietnam and two witnesses.
The Tribunal hearings were conducted with the assistance of an interpreter in the Vietnamese and English languages for the benefit of the visa applicant and the witnesses. The review applicant confirmed she did not need an interpreter and the Tribunal was satisfied this was the case.
The review applicant was represented in relation to the review by her registered migration agent and solicitor, David Nguyen, Migration Agent Registration Number 1278140, who attended both hearings.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the parties (the prospective spouse and his sponsor) genuinely intend to live together as spouses: c.300.216. The primary criteria in cl.300.2 of the Regulations must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria. To satisfy the criteria at the time of decision, cl.300.221, the applicant must continue to satisfy the criteria in cl.300.211 and cl.300.214 to cl.300.216.
The Tribunal, in considering whether the parties do genuinely intend to live together as spouses, has had regard to the evidence and matters contained in r.1.15A of the Regulations which provide a guideline as to relevant matters that may be considered by the Tribunal in reaching its decision whether the parties intend to live together in a married relationship that they both consider to be long term and genuine. The Tribunal has concerns that the relationship does not demonstrate the requisite mutuality, that is, that the parties have a mutual commitment to a shared life as a married couple to the exclusion of all others.
The parties both gave evidence at the hearing on 10 November 2017. They gave largely consistent evidence about the relationship in their oral evidence. However, the Tribunal had concern about evidence that had been provided by the visa applicant and his sister that seemed to indicate that in 2013 the visa applicant was still in a relationship with a woman he claims is his ex de-facto partner in Vietnam (and the mother of his child who is declared in the visa application as a non-migrating dependent family member). The parties in this matter both said at the hearing and in their written evidence that the visa applicant had ended the relationship with his ex de-facto partner in around 2012, claiming that she had been unfaithful and entered into a relationship with someone else and with whom she now has another child.
Having met briefly in Vietnam in December 2012, the parties claim that they started their relationship in 2013, shortly after the visa applicant travelled to Australia to see his family, after being granted a visitor visa. In that visa application, he and his sister provided sworn evidence that he was still in a relationship with the woman he now describes as his ex-de facto partner.
The visa applicant is a citizen of Vietnam and resides there. Up to and since the date the parties claim to have met and started their relationship in 2012, he has continued to reside there. He has visited Australia once since then, in 2013. The review applicant visited Vietnam in 2014, 2015 and 2017.
Because of the significant concern the Tribunal had about whether the visa applicant had ended his de facto relationship with the woman in Vietnam who is the mother of his child in 2012, 2013 or at any time since then, under s.359AA of the Act the matter of the inconsistent sworn evidence was put to the review applicant at the hearing, consistent with the legislative requirements, and the applicant was granted more time, after the hearing, to provide comments or a response. A written response was received. It has been considered and is discussed later in the decision.
The Tribunal has considered all relevant evidence, facts and matters having regard to r.1.15A(3) of the regulations. The applicants provided a large amount of documentary evidence at the time of application and additional documents to the Tribunal, including submissions from their representative and material addressing r.1.15A(3) matters. This included receipts for retail and other purchases, chat history, travel bookings, Vodafone records, photographs and receipts for money transfer from the review applicant to the visa applicant. The Tribunal has considered the evidence and given due weight to it.
The Tribunal has concerns about the rapid inception of the relationship and is not convinced they commenced their relationship before meeting for a second time in Australia in the second half of 2013. Although the parties claim to have remained in contact from December 2012 when they met in Vietnam through to August 2013 when they met again in Australia, there is little reliable evidence of this. In any event, the visa applicant arrived in Australia on 14 August 2013 and within two months the parties were engaged and had held an engagement party in Sydney. Three weeks later, compliant with his visitor visa conditions, the visa applicant returned to Vietnam. The parties’ first application for a subclass 300 prospective marriage visa was refused and a second application, which is the subject of this review, was lodged in March 2016 and again the visa was refused.
The adjournment of the first hearing
It was requested in the hearing invitation sent on 16 October 2017 that the applicant provide any additional evidence she wished to rely on at the hearing by 31 October 2017. That date passed and no additional documents had been received. On 1 November 2017, the member tasked a hearing officer to email the representative and copy the applicant, informing them that no additional documents had been received and were asked to inform the Tribunal whether they wished to provide any. The representative rang the Tribunal and, in a filed case note it is noted that he said that he had already responded to the hearing invitation and that he had nothing else to submit.
At the first hearing, the representative handed up a large bundle of documents, in excess of 300 pages, and a large number of undated and uncaptioned photographs. The applicant was told that it would probably be necessary to postpone the hearing so the member could give fair and thorough consideration to this additional evidence.
The applicant’s representative expressed his views about the Tribunal adjourning the first hearing. He considered it was not necessary. The Tribunal considered it was necessary and the first hearing was adjourned to three days later, with the agreement of the applicant. The Tribunal handed the photographs back to the applicant at the end of the first hearing and asked her if she would mind dating and captioning the photographs before returning to attend the resumed hearing. The applicant agreed and provided the Tribunal with captioned and dated photographs at the resumed hearing on Friday, 10 November 2017.
Before the hearing on Friday 10 November 2017, the representative made a formal complaint to the Tribunal in writing and requested the member recuse herself. He had submitted at the hearing that if continued as the representative for the applicant, the member would be biased. The member considered the request and was of the view that there would be no bias and a fair hearing could be conducted if she remained represented by Mr Nguyen and he attended the hearing. The member did not agree to recuse herself and the representative was notified. The representative had indicated at the first hearing that he may consider withdrawing his representation, but did not withdraw and attended the resumed hearing which went ahead as scheduled on Friday 10 November 2017. These matters are discussed later in the decision.
Do the parties genuinely intend to live together?
Clause 300.216 requires that at the time of application ‘the parties genuinely intend to live together as spouses’. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where those two people are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is recognised as valid for the purposes of the Act; there must be a mutual commitment to a shared life as husband and wife 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 considering an application for a Prospective Marriage (Temporary) (Class TO) visa, the Tribunal may have regard to the considerations set out in r.1.15A(3) for spousal relationships: r.1.15A(4). While it is not appropriate to consider whether the parties are spouses at the time of application or time of decision, an investigation of the parties’ intentions with regard to the definition of spouse in legislation may assist in determining the parties’ aspirations.
Having regard to the considerations for a spousal relationship, and the degree to which these factors may be applied to determine a future intention, the Tribunal has made its findings about whether the applicant satisfies s.5CB of the Act when regard is had to the evidence when considering r.1.09A matters.
The Tribunal, when reviewing the matter, has had regard to the information on the Department and Tribunal files and the oral evidence given at the hearing. Consideration and due weight has been given to the parties continuing to reside in different countries and that they are not yet legally married under Australian law (and do not claim to be). Positive weight has been given to some matters and negative weight to others.
Having considered the evidence, the Tribunal has concerns about the manner of the parties’ meeting, which appears, in the view of the Tribunal, to have been contrived for the primary purpose of facilitating the visa applicant’s migration to Australia where he has close relatives living. The Tribunal also has concerns about whether, at the time he met the review applicant and proposed marriage to her, he was still in a relationship and living with his ex-de facto partner in Vietnam and with whom he shares a biological child. The Tribunal holds concerns that he may still be in a relationship with her. There is no evidence that has been provided that reliably corroborates his claim that he is not.
The visa applicant has applied for two prospective marriage visas with the same sponsor (the review applicant in this matter), one on 30 June 2014, which was refused on 24 June 2015, and the second on 21 March 2016, the refusal of which is the subject of this review. It was refused on 14 November 2016. The review applicant lodged an application for review with this Tribunal on 6 December 2016, within time, and provided the Tribunal with a copy of the delegate’s decision to refuse the visa applicant’s subclass 300 visa. The matter was constituted to this member on 13 October 2017, an invitation to the 7 November 2017 hearing was sent to the review applicant’s representative on 16 October 2017. A response to the hearing invitation was received by the Tribunal on 23 October 2017 indicating the applicant would attend the hearing and wished the Tribunal to take oral evidence from three witnesses, including the visa applicant by phone from Vietnam. The review applicant requested an interpreter for her witnesses and the Tribunal provided one.
The review applicant is an Australian citizen who migrated here from Vietnam when she was a child. She confirmed at the hearing that she did not require an interpreter and is considered by the Tribunal to have been a witness of credit who gave spontaneous and cogent oral evidence and had an excellent command of the English language.
A significant issue the Tribunal has with this application is that there are credibility concerns about the visa applicant and his sister, who has provided evidence to support all of the visa applicant’s Australian applications, from the visitor visa application in 2012 through both the prospective marriage visa applications. This centres around the status of the relationship of the visa applicant with the woman he claims is his ex-de facto partner, the mother of his child and who still lives in Vietnam.
Overall, since 2013, the parties have spent what the Tribunal considers to be a fairly limited amount of time together for two people claiming to be in a mutually committed relationship. Other than the 2013 trip the visa applicant took to Australia, during which the parties became engaged, they have spent time together in Vietnam 2014, 2015 and 2016 when the review applicant was offshore for about a month on each of those occasions.
Background
The parties claim to have met for the first time in December 2012 when the review applicant travelled to Vietnam. She and the visa applicant’s sister, who lives in Sydney, say they had become friends after meeting at Uncle Thanh’s house in 2010, at a party. When the review applicant travelled to Vietnam in late 2012, the visa applicant’s sister, Thi, asked her to take some gifts, including t-shirts and fragrance and pass them on to her brother (the visa applicant). The parties say they met with each other on four or five occasions during the review applicant’s trip. Relevantly, the following time line was provided in written submissions:
a.03/12/2012     Review applicant travelled to Vietnam (with the gifts)
b.21/12/2012     Parties met for the first time in Vietnam (at Rita Café)
They met four or five more times during December 2012
c.30/12/2012     Review applicant returned to Australia (after 27 days)
d.14/08/2013     Visa applicant travelled to Australia to visit
e.12/10/2013     Visa applicant proposed to the review applicant
f.20/10/2013     Engagement party, family and friends in attendance
g.12/11/2013     Visa applicant departed Australia (has remained offshore)
h.30/06/2014     Visa application, subclass 300 Prospective Marriage
i.24/06/2015     300 visa refused by the Department
j.16/12/2015     Review applicant travelled to Vietnam with her son
Additional evidence, provided from that time up to the time of this decision includes the following events:
a.In February 2014, the review applicant travelled to Vietnam with her son for three to four weeks
b.The review applicant travelled to Vietnam for 26 days in December 2015/January 2016
c.The second prospective marriage visa application was lodged in March 2016 and refused in November 2016
d.The review applicant travelled to Vietnam for 34 days in January 2017
In April 2012, the visa applicant, who had visited Australia on one occasion before, applied for a visitor visa, sponsored by his sister who lives in Australia. It was refused. His sister sought merits review and the matter was remitted by the (then) Migration Review Tribunal on 6 May 2013. Relating to the 2012 visitor visa application and review, the visa applicant provided evidence by way of sworn statements that at that time that he was living with his de facto partner, and daughter - born in June 2009 - and mother-in-law, in Vietnam. He travelled to Australia and the parties held an engagement party with friends and family during his stay.
The visa applicant claimed at the hearing and in his written evidence (as did the review applicant) that since around October 2012, has been estranged from his former de facto partner, because he found out she was unfaithful to him. The Tribunal has heard oral evidence that she is a Vietnamese citizen and resident. In his application, the visa applicant declares one biological child, Tran Ngoc Kim Nguyen, born in 2009. There is conflicting and inconsistent evidence before the Tribunal about when the visa applicant’s relationship with the woman he claims is his ex-de facto partner ended and the Tribunal has no reliable evidence before it that indicates whether it was in 2012, 2013 or at some other time, or at all. This is discussed in detail later in the decision.
Although there is a large amount of evidence that has been provided in support of the parties claiming to be in a genuine and exclusive relationship and they claim to be planning to marry each other, the Tribunal is not satisfied, on the evidence, that there is reliable evidence that the visa applicant is not in a de facto relationship with the mother of his child in Vietnam. Notwithstanding that the review applicant has visited Vietnam on a number of occasions and the parties have provided documentary evidence of the trips and things they did while she was there, the Tribunal is not satisfied that the relationship is one of mutual commitment, which is to say that the Tribunal is satisfied that the review applicant appears committed to the relationship but does not hold the same view of the visa applicant.

The visa applicant’s sister gave oral evidence at the hearing. The sworn evidence she has provided from 2012 to the time of this decision contains a significant inconsistency. In 2012 and 2013, when she sponsored the visa applicant, her brother, to visit Australia, she claimed he was in a de facto relationship and living with his de facto partner in Vietnam. In relation to the matter currently before the Tribunal, she gave sworn evidence they were not then and are not now in a de factor relationship. Her evidence is considered to be highly unreliable for that reason and it is of significant concern that she has provided two substantially different versions of the visa applicant’s relationship status in sworn evidence. She is considered to be an unreliable witness and lacking in credibility.
Another witness who is a friend of the review applicant gave evidence at the hearing. She gave evidence that she attended the engagement party in 2013 and that the review applicant is sad that the visa has been refused. Her evidence is accepted.
The Tribunal, mindful that the parties are not yet married and only claim to be intending to marry each other, has had regard to what it considers to be relevant matters in r.1.15A(3) of the Regulations and has given due and appropriate weight to them.
Financial Aspects of the Relationship
The Tribunal has had regard to the extent to which the parties pool their resources at the time of application, their joint assets and liabilities, any legal obligations and the nature of their day-to-day household expenses when they have spent time together and also to their future intentions in this regard.
At the time of application, the review applicant had, from 2013 to 2015, made 18 money transfers totaling $1,738 to the visa applicant. The Tribunal accepts the money was sent, but there is no reliable way to say whose money it was. The review applicant is a woman of limited means and she has a dependent child who, at the time of application, was about 10 years of age. He is still dependent. The Tribunal does not accept that it is plausible that she would be prioritising sending her money to the visa applicant who, prior to meeting her, it is reasonable to think was able to support himself. The Tribunal considers that the sending of money was done for the primary purpose of support the visa application. There was no evidence provided that the visa applicant was in need of the funds, or any reasonable explanation, given that there is evidence the review applicant is of modest means, why she would be sending money to the visa applicant from a point in time that was only a couple of months after they met.
In written submissions provided to the delegate in March 2016, it is claimed that the parties intend to save a 10 percent deposit to buy a house together and that they intend to buy the house when the visa applicant comes to Australia to live. There has been no evidence provided that satisfies the Tribunal that the parties have made any progress with this plan or that it is a genuine or realistic plan in their circumstances. It is accepted that the visa applicant remains living in Vietnam and that both parties are of limited means. However, the Tribunal does not accept, in all their circumstances and on the evidence provided, that they have a genuine and mutual intention to save money together to buy a house.
At the time of this decision, the financial evidence provided indicates to the Tribunal that the transactions and plans the parties have more strongly indicate the evidence was provided to support the visa application rather than indicating they are conducting their financial affairs in the manner of two people who both have dependent children and who are planning a long term future together.
Nature of the Household
The Tribunal has had regard to nature of the parties’ household when they have spent time together in Vietnam and also to their intended household plans if the visa is granted.
At the time of application, the parties provided some hotel bill receipts from hotels in Vietnam during the periods when the review applicant was offshore from December 2015 to January 2016. Evidence of household registration in Vietnam was also provided for time the review applicant has spent in Vietnam.
At the time of application, the parties claimed they were intending to reunite once the prospective marriage visa is granted and live together at the household in Lime Street, Cabramatta West where the review applicant currently lives, and then later move out together and rent a place of their own. This stated intention is somewhat inconsistent with their claim that they intend to save a deposit and buy a house together.
The parties were asked individually at the hearing whether the review applicant had met the visa applicant’s daughter, who it is claimed resides with her mother in Vietnam. The parties gave inconsistent evidence. The review applicant was not asked about the matter but offered, by way of explanation of her own volition, having listened to the visa applicant’s oral evidence at the hearing, that it was a brief meeting and that he probably forgot. The Tribunal places no negative weight on the inconsistency. But what is of significant concern is that during all the times the review applicant has been onshore, the visa applicant has not introduced her to his daughter (except possibly on one brief occasion, for five minutes in 2014). The review applicant has travelled back to Vietnam since then, with her own school aged son.
The Tribunal has formed a view that the visa applicant has not declared the relationship with the review applicant to his daughter and whilst there are some photographs of the parties together in Vietnam on occasions when the review applicant has visited and with her son, there is no evidence that satisfies the Tribunal that the visa applicant declares the relationship to any friends or family members who live in Vietnam. Whilst it is not a requirement that he does so, and it is entirely a matter for him, it is given negative weight in the circumstances. He is planning to move to another country and the Tribunal considers it reasonable to think that he might have spent some time with his fiancé, her son and his daughter together in Vietnam.
The Tribunal accepts, on the evidence, that the parties have spent time together with the review applicant’s son in Vietnam. However, given the concerns the Tribunal has about the mutual commitment, this is not considered to be strong or persuasive evidence that they share or intend to share a household and jointly take care of the review applicant’s son.
It is accepted that the parties have spent time together in Vietnam and Australia. The Tribunal is not satisfied that the parties’ arrangements about their children, for example, introducing the children to each other or the visa applicant introducing his daughter to the woman he claims to be intending to marry and live with long term to be indicative of their sharing or planning to share a household as a long term married couple with the care of one dependent child in Australia. They provided some photographs that show them together with “CO5” and her family, but little evidence that satisfies the Tribunal that the parties’ relationship is declared widely in Vietnam, where the visa applicant lives.
Social Aspects of the Relationship
The Tribunal has had regard to whether the parties represent themselves to others as being married to each other, the opinions of friends and acquaintances about the nature of the relationship and any basis on which the parties plan and undertaken joint social activities together.
At the time of application, statutory declarations were provided from the visa applicant’s sister and cousin. The visa applicant’s sister is not considered to be a credible witness. This is because she gave conflicting sworn evidence about who her brother/the visa applicant was living with in 2012/2013, which was considered adverse information and has become the subject of a s.359AA inquiry by the Tribunal. It is of concern that she gave conflicting versions of events in sworn evidence previously, and her sworn evidence at the Tribunal and any credibility attached to that evidence has been negatively impacted by the underlying credibility concerns regarding evidence she has given in the past. The Tribunal has formed a view that she is motivated to provide evidence in support of her brother to help him achieve a migration outcome. Her evidence, in these circumstances, is given no weight.
The Tribunal has considered the evidence provided that demonstrates that the parties have socialised together in Australia and that they held an engagement party here with family and friends in attendance.
The parties have provided a large number of dated and captioned photographs of themselves together and with others. It is accepted that it is the parties themselves in the photographs and that some of them were taken with family members. However, although it is accepted that they have socialised together and with others, this does not convince the Tribunal, because of credibility concerns held about the visa applicant’s personal situation in Vietnam, that they are considered to be a genuine couple who intend to marry each other and live in a mutually exclusive and long term relationship.
Commitment to Each Other
The Tribunal has had regard to the duration of the relationship, the length of time the parties have spent together, the degree of companionship and emotional support they draw from each other and whether they see the relationship as long term.
The visa applicant has applied for two prospective marriage visas, one in 2014 and one in 2016. They were both refused because the delegate was not satisfied the parties genuinely intended to live together as spouses.
The issue of mutuality is of concern to the Tribunal. On the evidence, the review applicant presented as being committed to the relationship. However, serious credibility concerns relating to the visa applicant and his sister have led the Tribunal to the view, having considered all evidence individually and cumulatively, that the visa applicant committed to the relationship and intends for it to be long term. The Tribunal considers there is a strong possibility that he is using the prospective marriage visa application as a migration pathway. As has been discussed in this decision, the Tribunal is not satisfied that the relationship with the mother of his child in Vietnam is over as he claims. There was insufficient reliable evidence provided that puts the matter to rest to the satisfaction of the Tribunal.
The review applicant was asked at the hearing why she and the visa applicant hadn’t married each other yet, as they claim to have been planning to do so for a number of years. She said she wants to have her wedding in Australia where her family and friends live. It is accepted by the Tribunal that it is reasonable for the applicant to want to marry the visa applicant in Australia. However, the parties claim to have been in a relationship now for more than four years and the Tribunal does, notwithstanding the review applicant’s desire to marry in Australia, place negative weight on this. The visa applicant has not satisfied the Tribunal that he has declared the relationship widely in Vietnam. A marriage in Australia would mean he would not have to.
In addition, given the length of time the parties claim to have been in a relationship, since 2013, the Tribunal does not consider they have spent a significant amount of time together demonstrating a level of companionship and emotional support that would be reasonable to expect, in the circumstances, that they might. At the time of this decision, the evidence before the Tribunal indicates that the last time the parties spent time together in person was in January 2017 when the review applicant travelled to Vietnam and stayed for about a month. The applicants have provided phone and chat records that show calls have been made between over time. However, they provide little if any detail about the nature or content of the conversations. It is not possible, from the phone records, to be satisfied who it was who made or took part in the calls. The review applicant said that she and the visa applicant speak every day and some positive weight is given to this oral evidence as she was generally considered to be spontaneous and credible. However, speaking to each other, even if it is every day, does not in the circumstances of this matter convince the Tribunal that there is a mutual commitment. The records are given little weight.
The applicants have provided a large amount of evidence, including phone and chat records, photographs and their own oral evidence. The Tribunal, taking all matters into consideration, including credibility concerns about the visa applicant, is not satisfied that the parties conduct themselves in a manner demonstrating they provide each other with companionship and support and that they have a mutual commitment to the relationship being long term.
Other
At the end of the hearing on 10 November 2017, the representative made corrections, for the record, to his written submissions. These were noted. The Tribunal has considered his submissions with the amendments noted.
Section 359AA information put to the review applicant at the hearing
The Tribunal put matters to the review applicant under s.359AA at the hearing. It was explained why the information was being put to her for comment or response and she was told that it was information that, if relied on, would be the reason or part of the reason for affirming the decision.
The information was, in essence, that the visa applicant had provided a statement with his 2013 visitor visa application and also a statutory declaration sworn by his sister, Thuy, who was a witness who attended the hearing in the matter under review, stating that the visa applicant was, in April 2013, living with his de facto partner in Vietnam. Both the review applicant and visa applicant had said in their oral evidence that the visa applicant separated from her in 2012 and the review applicant was told that this was inconsistent with the sworn evidence of the visa applicant and his sister provided in 2013. In addition, a further inconsistency was that the visa applicant’s sister, Thuy, who had sworn the statutory declaration in 2013 stating her brother was living with his de facto, had clearly said in her sworn evidence at the hearing, when asked, that he was not in a de facto relationship in 2013.
The review applicant was asked if she wished to comment or respond at the hearing and said she would like more time to respond after the hearing. Her response was noted as being required by 24 November 2017. The review applicant was told the Tribunal had not made a decision and a decision would not be made until after 24 November 2017, when her comments had been received and considered.
The review applicant elected to provide comments or a response after the hearing. Copies of the statements were requested by the representative and copies were made for him.
The statutory declarations sworn by the applicant and his sister state that the applicant was, when he applied for his subclass UL-679 visitor visa in mid-2013 (granted on 9 July 2013 and valid to 12 November 2013), still in a relationship with his ex de-facto partner, the mother of his child, in support of him having an incentive to return. He provided evidence, in his statutory declaration submitted with his 2013 visitor visa application that he was still living with his de facto, his child and his mother-in-law. It was dated 26 April 2013 and said:
a.“Currently I am living with my de facto wife and my child. I have a parcel of land …”
He provided evidence, in the form of a statutory declaration from his sister, in which she said essentially the same thing. She declared on 25 April 2013:
a.“He (the applicant) is living with his de-factor (sic) partner and his child”.
The Tribunal did not receive a response or comments to the s.359AA adverse matters within the timeframe, by 24 November 2017. A few days later, on 29 November 2017, the member tasked a case officer to call the representative and ask if he had or intended to provide comments or a response from the review applicant. He said he had already sent the response the week prior, but advised he would send it again. He forwarded an email attaching the document entitled “Further Submission from Sponsor211112017”, received by the Tribunal at 9:30am on 29 November 2017, which indicated that he had previously sent this forwarded email and the attachment, on 21 November 2017, not to the Tribunal but to the email address of the review applicant, Chau (the one that the Tribunal has in its system as her contact email).
The typewritten statement signed and dated by the applicant on 21 November 2017 and received by the Tribunal on 29 November 2017 has been considered. The essence of the response was that the declaration the visa applicant made in 2013 was true and that he had not left the relationship with his ex-de facto partner permanently when he lodged his visitor visa application, but that he moved 200 kilometres away to Ho Chi Minh City for work and returned to visit his de facto partner and child occasionally. While he was away, it is claimed his ex-de facto partner was unfaithful to him, refused to admit it, but gave birth to the child of another man in late July 2013 and admitted shortly after that she was unfaithful, by phone, while the visa applicant was in Australia (in 2013). He therefore considered (retrospectively) that the relationship was over since October 2012 when the baby was conceived. The Tribunal considers this version of events has been contrived to mitigate against the inconsistent evidence given in the 2013 visa application being considered adverse and given negative weight.
The statement is not sworn evidence, and the Tribunal gives it limited weight in those circumstances. Having been granted the opportunity to address the concern the Tribunal has with the status of the visa applicant’s relationship with the woman he claims is his ex de-facto partner in Vietnam, the applicant provided only this brief one page typed and unsworn statement. The review applicant has, with her application, provided sworn evidence in writing in the past and the Tribunal gives this typed statement little weight in the circumstances. The Tribunal is not satisfied that it reliably indicates that the review applicant herself composed and provided the document.
Greater weight is given to the statutory declarations provided with the visa applicant’s 2013 visitor visa application, because they are sworn evidence, and one corroborates the other, albeit with evidence that is unfavourable to the parties. The evidence given by the parties and the visa applicant’s sister at the hearing about the relationship he had with his ex-de facto partner, that the relationship ended in 2012, was also sworn evidence – they all said the same thing at the hearing. However, this was inconsistent with the earlier statutory declarations provided by the visa applicant and his sister with the 2013 application. The Tribunal accepts that the review applicant thinks the relationship between the visa applicant and the woman he claims is his ex-de facto partner is over. However, the Tribunal thinks it is probable and highly likely that she holds this view because it is what she has been told by the visa applicant and/or his sister.
There is no evidence before the Tribunal that the ex-de facto is in a relationship with anyone else or that the second child is the child of someone who is not the visa applicant.
The Tribunal’s view, on the evidence, is that the visa applicant was still in a relationship with his ex-de facto partner in 2013. In the s.359AA response it is said that he was and that he had not left the relationship permanently and they had lived together without formal documentation. The claim is that when the visa applicant found out, in around August 2013, that his de facto partner had a baby with another man, he then decided that in his mind, notwithstanding that he had not permanently separated from her, that the separation was considered by him to have started when he says she committed adultery, in October 2012 (which the Tribunal considers to mean when she conceived her second child).
Complaint and Request for Recusal

It is the usual practice of this member to review a file about a week prior to a scheduled hearing and, if no information has been received, send a reminder to the representative and sometimes the applicant as well, depending on the circumstances.
There is a case note on the Tribunal file that on 20 October 2017 the representative called the Tribunal and requested a copy of his own written submission because his computer had crashed. In this circumstance, that being that the written invitation to the hearing was sent to the representative on 16 October 2017, and as it was not known if the representative was receiving electronic communications due to his computer problems, the applicant was copied on the 1 November 2017 reminder letter to her email address to ensure she received it. The representative and applicant were informed in the letter that it had been requested that any additional documentary information be provided at least seven days prior to the hearing and that to date (1 November 2017) the Tribunal had not received any additional information or documents that the applicant wished the Tribunal to consider. The representative was asked if he could indicate if he intended to provide any additional documents or information before the hearing. The representative phoned the Tribunal on the same day and spoke to a case officer. He told her that the response to the hearing invitation had already been returned (which it had, on 23 October 2017). Up to the time of the Tribunal hearing, at 11:00am on 7 November 2017, no additional information or documents had been provided to the Tribunal in relation to the matter under review.
The representative brought with him and handed up a large number of documents at the first hearing on 7 November 2017. He was asked why he had not provided the documents before the hearing. He said that it was his intention to give oral submissions about the documents. This was the applicant’s documentary evidence, about her matter, and the Tribunal wished to hear evidence from her, not evidence from her representative, once the documents had been read and considered. The representative is, as a matter of course, in this member’s hearings, invited to give oral submissions at the end of the hearing if they wish to.
The Tribunal told the applicant that the documents would need to be read and considered before proceeding and, given the volume (which amounted to more than 300 pages plus a large number of undated and uncaptioned photographs), it was unlikely the hearing would conclude within the time set down and it may need to be postponed. It was explained to the review applicant that, in the view of the Tribunal, it would be better to have one hearing rather than two.
The Tribunal discussed with the representative why, as the documents all seemed to pre-date the request made for information the week prior to the hearing, they had not been provided so the member could give them fair and thorough consideration. He said he did not think it necessary as he would prefer to hand them up at the hearing and give oral submissions about them himself. He said that he had not previously had problems with other Tribunal members when he provided documentary information the day of the hearing. He was told that this seemed unlikely, in this member’s experience.
He added that he thought it should only take the member about five minutes to look at the documentary evidence that had been provided. The member disagreed and gave reasons why, which included that there were two packets of undated and uncaptioned photographs and hundreds of pages of documents, all of which needed to be looked at and not just considered individually but together with other documents already on the files. He was told that the member estimated that it would take no less than one hour, possibly longer. The applicant was told that in fairness to her, the hearing would be postponed, so all evidence could be considered, rather than have part of the hearing and then have to have the rest of the hearing on another day.
The representative expressed his disagreement that this needed to happen and requested that he be allowed to make submissions without the review applicant present. He was told he could make submissions but, in the view of the Tribunal, it would not be fair or appropriate to ask the applicant to leave her own hearing. He made submissions at the end of the hearing, in the presence of the applicant, and said that he would have to withdraw his representation because the Tribunal would be biased if he continued. He was told by the member that it was a matter for him and the applicant whether he took that course of action. The representative, in the presence of the applicant, was told that the Tribunal was not requesting, suggesting or recommending that he withdraw.
Shortly after the hearing, the representative made a formal complaint, in writing. It included the following allegations that essentially:
a.The member did not conduct the hearing independently, impartially or with integrity.
b.The member’s conduct would give the public and his client the view that the case was conducted with an apprehension of bias.
c.The member’s conduct was highly disrespectful toward the representative and he was not afforded fairness.
d.The hearing was postponed without justification.
The representative concluded his email, dated 7 November 2017, by requesting the member recuse herself from deciding the matter. The member considered the request and decided not to recuse. The representative was informed of this by the Tribunal prior to the hearing. The resumed hearing went ahead as scheduled.
The member considered that the hearing was postponed with justification and this was explained to the applicant, with the reason given to her that because of the large amount of evidence handed up at the hearing there would not be time to give it fair consideration and conduct and conclude the hearing without adjourning for a second hearing. This was despite the request in the written hearing invitation that any documents be provided seven days before the hearing and a further specific reminder sent to the representative in the week before the hearing reminding him to send any additional documents. The applicant was told that the discussions between the member and her representative at the hearing would not negatively impact how her matter was reviewed or decided.
The review applicant attended both hearings without an interpreter – she has lived in Australia since she was a child and confirmed she did not request or need one. The Tribunal observed her to have impeccable English and is satisfied she understood the reasons for the postponement.
At the first hearing, in light of the representative’s oral statement to the Tribunal and his advice that he intended to withdraw his representation, which appeared, in the view of the Tribunal, to cause the applicant some alarm and distress, the applicant asked if she could attend the adjourned hearing, on Friday 10 November 2017, without her representative and was told that she could if she wished to.
At the end of the first hearing, two packets of photographs were returned to her and she was asked if she would mind captioning and dating them before she returned for her resumed hearing and she said she was happy to do that, which she did and brought them back to the resumed hearing with her. At the end of the first hearing, the review applicant said she and her fiancé speak every day and asked if she could bring additional evidence for the three day period up to the second hearing and was told she was welcome to bring the additional evidence with her to the resumed hearing.
After consulting with the registry, on 7 November before adjourning, to ensure a room was available, the Tribunal scheduled a second hearing on Friday 10 November 2017. The applicant agreed to the shortened time period. An invitation to the second hearing was sent on the same day and a response to the invitation received indicating the review applicant and three witnesses would be giving evidence.
The Tribunal was not notified by the applicant that the representative would withdraw, as he had indicated he may do, and the representative also attended the postponed hearing.
The impression the Tribunal has left with and the strong view formed is that the requisite mutuality is not present between the parties. The visa applicant’s credibility is affected negatively by his internal inconsistencies relating to when the relationship with his ex de-facto partner broke down or finished. Notwithstanding that the parties have provided evidence of having spent time together in Australia and Vietnam from 2013, the Tribunal is not persuaded that the visa applicant is separated from the woman in Vietnam he claims to be his ex de-facto partner and who is the mother of his child.
The Tribunal has considered all relevant facts and matters, individually and cumulatively, and is not satisfied that at the time of application the parties genuinely intended to live together as spouses, and therefore cl.300.216 is not met.
For the reasons above, the Tribunal finds the visa applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa.
Jennifer Cripps Watts
Member

[2018] AATA 2464

21 June 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Intention