Phan (Migration)

[2019] AATA 2769

Phan (Migration) [2019] AATA 2769 (14 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Van Ba Phan

VISA APPLICANT:  Mrs Thi Lien Tran

CASE NUMBER:  1804800

DIBP REFERENCE(S):  BCC2017/1585432

MEMBER:Steven Griffiths

DATE:14^th May 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 14 May 2019 at 1:02pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – knowledge of visa applicant’s finances – knowledge of the day-to day activities of each other – decision under review affirmed

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

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 22 January 2018 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, Ms. Thi Lien Tran, applied for the visa on 3 May 2017 on the basis of her relationship with her sponsor Mr. Van Ba 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 the visa applicant.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because the delegate was not satisfied the visa applicant was the spouse, as defined in s.5F of the Act, of the sponsor.  

4. The sponsor appeared before the Tribunal on 1 May 2019 to give evidence and respond to questions. He provided the Tribunal with a copy of the delegate’s decision record. The Tribunal also received oral evidence from 2 family members at the hearing and from the visa applicant by telephone from Vietnam.

5. The sponsor was represented in relation to the review by his registered migration agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese language.

6. The Tribunal has concluded that the decision under review should be affirmed as the parties have not satisfied the Tribunal that they have a spousal relationship as defined.  

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal has taken into consideration all the evidence in the Department of Immigration and Border Protection’s file and the Tribunal’s file, including additional information provided to the Tribunal and the evidence at the Tribunal hearing.

   ISSUE

8. The issue is whether the visa applicant is the spouse, as defined in s.5F of the Act, of the sponsor.

   BACKGROUND ON THE EVIDENCE

9. In 1968 the visa applicant was born in Ba Ria-Vung Tau Province, Vietnam. Phuoc Hai, Ba Ria Province, Vietnam. Her parents are alive and as with her 4 brothers and 2 sisters live in Vietnam. She was first married in 1989, with her husband dying in 1999 and her only child, a son, is in Australia studying.

10. In 1955 the sponsor was born in Phuoc Hai, Ba Ria Province, Vietnam. His parents are alive, living in Australia. He has 3 sisters, 2 living in Canada and 1 in Australia and 1 brother who lives in Australia. He has been married 3 previous times and has 5 children, with 2 adult daughters living in Vietnam and 3 adult sons who live in Australia.

11. The parties first met in Australia on 15 November 2015, were engaged the following day and married on 14 January 2016. 

    INFORMATION TO THE TRIBUNAL

12. Since the Delegates decision, the sponsor provided further information to the Tribunal, including:

    Statement by the Migration Agent.

    Marriage Certificate dated 14 January 2016

    Copies of documents, being Housing SA, electricity accounts and water accounts in joint names.

    62 double sided pages of wedding invitations (which the Migration Agent has stated are ‘money envelopes’ as wedding gifts by family and friends.

    Bank statements from Bank SA for an account stated to be a joint account.

    Money transfer receipts between 9/2/18 to 6/10/18 totalling $ 13,500 from the sponsor to the visa applicant.

    Copies of communication between the parties – being calls and Facebook chats.

    Technicians invoice for visa applicant’s phone data loss.

    Form 888 of Ms. Julie Nguyen, cousin of the visa applicant

    Form 888 of Mr. Van Bot Nguyen, uncle of the visa applicant.

    Statement from visa applicant’s son.

    Flight booking for sponsors trips to Vietnam in 2018 and 2019.

    Shared household temporary registration in Vietnam and joint travel and wedding reception costs details.

    Photographs with family and friends taken in Australia and Vietnam.

    Is the visa applicant the spouse of an eligible citizen?

13. Clause 309.211(2) requires that at the time the visa application was made the visa applicant is the spouse or de factor partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. The Tribunal has regard to an apparently genuine certificate of Australian Citizenship, dated 25^th June 1987, by the sponsor and finds the sponsor to be an Australian citizen.

    Are the parties are in a spousal relationship

14. ‘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).

15. 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 of the nature of the visa applicant’s and sponsors household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.

    Are the parties validly married?

16. At the time the visa application was made the visa applicant provided evidence of being married to the sponsor. 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). The parties have provided a Certificate of Marriage as evidence of their marriage on 14^th January 2016, in Australia. The Tribunal has regard to this document and finds that the parties were married at the time of the visa application and the decision by the Delegate.

    CLAIMS AND FINDINGS

    Financial aspects of the relationship

17. The Tribunal determines, from the evidence provided, that the parties at the time of the delegate decision, did not have any joint ownership of assets or joint liabilities or any legal obligation owed to the other party.

18. The visa applicant owns her home in Vietnam and has always worked, with for nearly 20 years involved in Aquaculture (cockle) farming.

19. The sponsor, while previously having owned a home in Australia with his first wife, confirmed this had been sold and he has lived in public housing for 6 years. The sponsor has not worked for 23 years since a workplace injury, in Australia, and relies on pension support and savings.

20. Evidence was provided to the Tribunal of an Australia based joint name bank account, with the parties stating, but providing no evidence, that it was used by the visa applicant while she lived with the sponsor briefly before and after the wedding in January 2016. For the last 2 years of transactions expenditure viewed by the Tribunal the account is used to pay for internet service to the home of the sponsor. The Tribunal determines that this bank account does not demonstrate a sharing of day-to-day household expenses.

21. Evidence was provided of the names of both parties on the electricity account of the home of the sponsor, with this account change made at the time of the marriage. The Tribunal determines that this does not demonstrate a sharing of day-to-ay household expenses.

22. Evidence provided by the Migration Agent of joint names for water costs at the home of the sponsor in support of the case was not recognised by the sponsor. 

23. Both parties confirmed that the sponsor has provided funds, via money transfer, to the applicant since the marriage, with the Tribunal provided with copies of transfers for 2018 and 2019. At the hearing the sponsor was unsure of the value involved and in response to questions on what the funds were used for focussed on the wedding in Vietnam costs, which had occurred early in the relationship, while the visa applicant highlighted the money was being used to assist with health treatment costs of her mother, which the sponsor said he had no knowledge of. The visa applicant responded saying that the sponsor knew of the health issues with her mother. The Tribunal determines that the inability of the sponsor to confirm the use of the funds that this support does not demonstrate a sharing of expenses. 

24. The Tribunal acknowledges the financial support of the sponsor to the visa applicant, with the sponsor demonstrating a lack of knowledge about the visa applicants’ finances. The Tribunal determines that the parties have not provided evidence of pooled financial resources or the sharing of day-to-day household expenses.   

    Nature of the household

25. Since the marriage in Australia in January 2016, the sponsor has been to Vietnam 4 times. The first was in June 2016 to be married with visits in September 2017, February 2018 and January 2019. For each trip, the sponsor was in Vietnam for approximately 4 weeks and reports to have stayed with the visa applicant but the Tribunal was not provided with evidence of the living arrangements or shared household responsibility of the parties.

26. The Tribunal was advised that for the period immediately before and after their January 2016 wedding in Australia, the parties shared household responsibilities, with the visa applicant shopping and caring for the sponsor while he performed tasks around the household. The Tribunal was not provided with evidence to support these statements.

27. Both parties confirmed independently that the son of the visa applicant has been living in recent months with the sponsor while studying and working in Australia. The sponsor was unsure on if the son had a current partner relationship, stated that he was out of the house for long hours every day and he had little knowledge of his day-to-day life, but did confirm eventually that the son had previously, while in Australia, been married but was now divorced. The son of the visa applicant provided a written statement on the relationship between his mother and the sponsor, but the sponsor was unable to provide detailed information about the son other than saying he was away from the home for over 12 hours each day. The Tribunal does not accept this evidence as a demonstration of a joint responsibility for the care and support of children.   

    Social aspects of the relationship

28. Internet and telephone records of contact by the parties with each other were provided to the Tribunal and in evidence both parties confirmed they are in regular contact.

29. The Tribunal accepts that the parties have provided photographic evidence of undertaking joint activities during the time spent together in Australia and Vietnam. 

30. Both parties stated the other had few friends, and during the hearing were unable to provide the names of any and could only note general terms such as that they sometime visit others for coffee.

31. The sponsor detailed that the visa applicant had met 3 or 4 of his friends in the period she lived with him before and after the wedding, while also confirmed that none of these people had been with him when the parties were talking via the internet in the last 3 years.

32. Family members provided in writing and at the hearing, support for the relationship.

33. One friend of the sponsor provided written evidence of the relationship based on times spent with the parties while the visa applicant was in Australia in early 2016.  

34. Both of the parties were unable to provide real details on what the other does each day, with only general terms used.

35. The sponsor has not worked for 23 years, but the visa applicant does not know what he does during the day, other than talking about what he did when they were living together in Australia in January 2016.

36. The Tribunal accepts from the evidence that the parties are in contact and that their family and friends are aware of their marriage, but were unable to demonstrate a social connection as they were unable to outline at the hearing the day-to day activities of each other.  

    Commitment to each other

37. Evidence in the visa application file, and from the sponsor in the hearing, confirmed that he had met a friend who is the uncle of the visa applicant prior to meeting her and was told that the she wanted to come to Australia.

38. The parties have confirmed, and the evidence before the Tribunal supports, that they met on 15 November 2015, at the home of the visa applicant uncle, spent time together, became engaged the next day after which the visa applicant lived with the sponsor and they were married on 14 January 2016.

39. Movement Records indicate that at the time of the decision by the delegate, with the parties having been married for 2 years and 2 weeks, the parties had been together for 66 days.   

40. The parties both stated at the hearing that with their ages (sponsor 63 & visa applicant 50) they found no need to delay the marriage given the attraction felt for each other and see the marriage as being for the long term. The Tribunal was not provided with sufficient evidence to accept that a commitment exists.

41. The parties confirmed that they are committed to each other, talk regularly via the internet and telephone, the evidence of some of which the Tribunal has seen, and support each other through the times of separation and wish to live together.

42. The Tribunal does not accept that the parties provide each other with emotional support. Although the parties claim to be in contact with each other daily, they do not provide evidence of detailed knowledge of the activities of the other or examples of emotional support, evidenced by the lack of information from the sponsor about the ill health of the mother of the visa applicant.

    Other considerations

43. The visa applicant stated in evidence to the hearing the efforts made prior to submitting the visa application to include her adult son as part of the application, but he was too old. This information was not mentioned at the time of questioning the sponsor about his relationship with the son.

44. On the basis of the above the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time of the visa application.

45. The Tribunal considered all aspects of the parties’ relationship including the financial and social aspects, the nature of the household and the parties’ commitment to each other. The Tribunal accepts that the parties are married, have socialised in Australia and Vietnam and have communicated with each other. However, on the basis of the findings by the Tribunal as outlined through this review process, the Tribunal does not accept that the parties were in a genuine spousal relationship at the time of the visa application.

46. On the basis of the above the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time of the visa application.

47. There is no evidence that the visa applicant meets any of the alternative criteria for the grant of the visa.

48. Therefore the visa applicant does not meet cl.309.211 of Schedule 2 to the Regulations.

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

    DECISION

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

    Steven Griffiths
    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).