Phan (Migration)

[2023] AATA 3727

Phan (Migration) [2023] AATA 3727 (26 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Hien Phan

REPRESENTATIVE:  Ms My Yen Tran

CASE NUMBER:  1901207

HOME AFFAIRS REFERENCE(S):          BCC2016/3070012

MEMBER:Ann Duffield

DATE:26 October 2023

PLACE OF DECISION:  Canberra

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

Statement made on 26 October 2023 at 1:20pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – sponsor passed away prior to a decision being made – evidence was vague and contradictory – no substantive evidence of how the parties shared their financial resources – not satisfied that the applicant was the spouse of the sponsor within the meaning of the Migration Act either at the time of application or at the time of this decision – marriage was one of convenience to ensure that the applicant could remain in Australia with her family –– decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5F, 65

Migration Regulations 1994, r 1.15, Schedule 2, cls 820.211, 820.221

CASES
He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 15 September 2016 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (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 820.221(2)(a) because they were not satisfied that the applicant was the spouse of the sponsor within the meaning of the Migration Act at the time of the sponsor’s death.

4. The applicant appeared before the Tribunal on 19 October 2023 to give evidence and present arguments.: The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant was in a spousal relationship with the sponsor and would still be the spouse of the sponsor had the sponsor not passed away.

   BACKGROUND

8. The sponsor was an Australian citizen born in Vietnam February 1948. He has declared five children with his previous wife whom he divorced in December 1992. One of his children is resident in Australia, Mr Michael Quan Tran.

9. The applicant is a citizen of Vietnam born in April 1959. She arrived in Australia on a tourist visa in November 2015 and has not departed since that time. She has declared three children to her previous husband whom she divorced in June 2016 and they reside in Vietnam. She has declared her sister Phan Thi Tuyet Nhung as resident in Australia; a brother Phan Vinh resident in Australia; and her mother Tang Thi Chinh resident in Australia. 

10. The parties claim to have met for the first time at a party of the applicant’s brother in Vietnam on 27 August 2015. She travelled to Australia in November 2015. They were married on 31 July 2016, soon after her divorce was finalised in April 2016.  They lodged the application subject to this review on 15 September 2016.

11. The sponsor passed away on 30 August 2018. His place of death is recorded as 8 Verona Avenue, Mount Pritchard. This is also recorded as the home of his son, Michael Quan Tran, who also informed the authorities of his father’s death.

12. The applicant claims that she and the sponsor lived together in a happy, genuine and ongoing marriage in a granny flat behind the home of her brother, Quoc Hung Phan, at 26 Bolinda Street, Bushby, NSW. She claims she moved out of that place in 2020 and currently resides at 82 Brown Road, Bonnyrigg which is the home of her sister and brother-in-law.

13. The applicant has provided several supporting statements and statutory declarations from friends declaring that the marriage was genuine and ongoing. There is also a statutory declaration from Ms Tran Thi Thiet, one of the sponsor’s daughters and one from his son Michael. The applicant’s brother-in-law and brother also provided statutory declarations in 2016.

    Whether the parties are in a spouse or de facto relationship

14. Clauses 820.211 (2)(a) and 820.221(1)(a) require that at the time the visa application was made, and at the time of this decision, the 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 applicant claims to be the spouse of the sponsor who is an Australian citizen. There are exceptions to this requirement. Relevant to this decision is the fact that the sponsor passed away prior to a decision being made.

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

    Are the parties validly married?

16. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The sponsor was divorced from his first wife in December 1992. The applicant’s divorce was finalised in around April 2016. The parties were married on 31 July 2016 in Australia. 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).

    Information before the Tribunal

17. The applicant provided the Tribunal with a copy of the delegate’s decision along with their application for review.

18. The Tribunal has a copy of the department’s file. It also has a variety of other documents before it, including the following:  

    a.Statutory declarations from eight friends of the parties dated in the first few months of 2021. All state that they knew both the applicant and the sponsor. All speak of the care provided to the sponsor by the applicant and of visiting them at their home. Mr Can Cu Tran, for example states that he visited them three times a week until the sponsor passed. Others such as Thien Van Vo states that he met the applicant many times when he went to their home to drink with the sponsor. Others still, including Thi Tuyet Troung, state that they see the couple at church on Sunday. All declarants hold the belief that the applicant and the sponsor were in a genuine and ongoing marriage at the time of the sponsor’s death and would still be married had he not passed away.

    b.Statutory declaration from the sponsor’s daughter dated January 2021 stating that she would see the applicant and the sponsor every couple of weeks and call them often to talk and inquire about their health. She states that she often visited her and joined her family for dinner. Ms Tran Thi Thiet states that the parties’ relationship was ongoing at the time of his passing and that their relationship was recognised by everyone.

    c.A further statutory declaration from Ms Thi Thiet Tran dated October 2023 restating her previous declaration that the sponsor and the applicant were in a genuine marriage at the time of the sponsor’s passing.

    d.Statutory declarations from the sponsor and the applicant dated early 2016

    e.Letter of support from Priest Dang Dinh Nen dated December 2018 stating that the parties consistently attended the Sunday services and were a very loving couple.

    f.Letter of support dated December 2018 from the applicant’s employer at the time stating that she and the sponsor were a wonderful couple, and the marriage was strong.

    g.Statutory declaration from the brother of the applicant and the brother-in-law of the applicant stating that the parties lived together, were committed to each other, and had a very happy marriage dated September 2016.

    h.Death certificate of the sponsor

    i.Some photographs

    j.Statutory declaration from the applicant dated October 2023 stating that she and the sponsor lived together in Busby and were a committed, loving couple who would still be together today if the sponsor had not passed away.

    Tribunal hearing

19. The Tribunal sought information from the applicant about the financial arrangements that existed with the sponsor during their time together. She told the Tribunal there was no will as the sponsor did not have any assets or belongings when he passed away. She said that he had a car which she gave to his daughter. The Tribunal put to the applicant that there was very little documentary evidence about their financial matters including only one joint account which did not appear to have many transactions that showed it was a day to day living account. She said that the sponsor received a pension into his own account, and he used that for living expenses. She said that she earned cash and used that money to pay for other things like groceries. The Tribunal asked her if she had a bank account and she claimed she did not. She only had cash and sent some money to her child in Vietnam.

20. The applicant said that they lived together at the granny flat in Busby until he passed away. They paid her brother $200 a week for rent and all the utilities. There isn’t any evidence of these payments, and the parties did not have any utility or other bills.

21. The Tribunal asked the applicant when the sponsor moved into the granny flat in Busby with her and she said that it was after they were married on 31 July 2016. Before that she claimed that he was living in a room in a house in Mount Pritchard. She did not know who else lived in that house or what the address was. The Tribunal put to the applicant that perhaps it was the home of the sponsor’s son, Michael, who lived in Mount Pritchard and that in fact the sponsor lived there separately from her in the granny flat in Busby the whole time. She denied this, stating that they lived together in the granny flat in Busby.

22. The Tribunal asked the applicant why she claimed to have been single when she met the sponsor in August 2015 when she was in fact still married to her first husband. The Tribunal put to her that she married the sponsor shortly after her divorce to her first husband was finalised. She claimed that they had been separated for several years and she was single. Asked when she sought a divorce from her ex-husband, she said that she did not ask for a divorce. She said that her ex-husband sent her the papers in February 2016 when she was in Australia.

23. The Tribunal asked her why she did not initiate the divorce before she came to Australia, and she said that she came to Australia to visit her mother and her sister and did not have any intention of divorcing him at that time. The applicant said that she thought that he asked for a divorce because he wanted to marry someone else. She did not know if he had, in fact, remarried. Her three children remain in Vietnam.

24. The applicant told the Tribunal that she and the sponsor lived together, and everybody knew about that. Every Sunday they went to church together and everyone there knows that they live together even the priest. She said they mostly stayed in and when they couldn’t go out, they asked the younger sibling to get food and she would cook for the sponsor. She said the marriage was happy and he was very kind. They planned to visit Vietnam because the oldest sibling passed away – but he said that he was tired, and she could not go alone.

25. The applicant told the Tribunal that she met the sponsor for the first time at a party at her brother’s house in Vietnam in late August 2015. She said that the sponsor came with her other brother, who lived in Australia. She did not say how they came to know each other in Australia. She provided no other details about the development of their relationship or how often they saw each other prior to his departure on 4 September 2015. He was in Vietnam for a total of 11 days.

26. The Tribunal asked the applicant if she travelled to Australia in November 2015 with the intention of returning to Vietnam and she said that she came to see her mother and sister. Her mother was very ill at the time. Asked if she came to see the sponsor, she said that they met in Vietnam and that she went to see him after she arrived. She said that feelings between them developed, and their families supported their relationship.

27. The Tribunal noted that it had received many statutory declarations from friends and the sponsor’s daughter supporting their marriage. The Tribunal asked why there was not a statement from Michael Quan. The applicant said that they were not very close because Michael was his son out of wedlock. She said that the sponsor was much closer to his daughter. The Tribunal put to the applicant that the sponsor died at Michael’s house. The Tribunal put to the applicant that it seemed quite a co-incidence that he would be at the home of his son with whom he did not have a relationship at the time of his death. The applicant said that the sponsor was just visiting him. The Tribunal put to the applicant that perhaps the sponsor was living with Michael at the time. The applicant denied this.

28. The Tribunal asked the applicant what happened at the time of the sponsor’s passing, and she said that the sponsor drove her to work (it was a Thursday) and he went to meet his friends to have coffee or play chess and then they told her that he had a stroke. The Tribunal said that the sponsor died at Michaels house and asked how his friends could tell her about the stroke. She said that the sponsor went to see Michael after he saw his friends. She said he passed away suddenly in the afternoon.

29. The Tribunal sought clarification from the applicant as her evidence was vague and contradictory and she said that the sponsor passed away in the morning and she was notified a long time later. She said that Michael called her from the hospital in the afternoon. After pressing further, she said that he had passed away before he arrived at the hospital and when she arrived, he was in the morgue. She said that only Michael was there at the hospital. The Tribunal reminded the applicant that she had earlier said that the sponsor had the stroke in the morning, and that his friends called her to tell her that he had a stroke after several hours.  The Tribunal put to her that she now was claiming that he died in the afternoon after spending the morning with friends playing chess and drinking coffee and going to Michael’s house and that he had in fact died before he arrived at the hospital and Michael called her. She said that she was in shock at the time.

30. After the sponsor’s passing, the applicant remained at Bolinda Street until 2020 when she moved in with her younger sister in Bonnyrigg where she remains. She said that Michael and the sponsor’s daughter organised the funeral and she greeted guests when they arrived. She said that the money they got from people who came to the funeral paid all the expenses.

31. At the conclusion of the hearing the Tribunal asked the applicant and her representative if there was any other information or evidence they wished to provide and they asked for one week to provide a statement from the sponsor’s son Michael. The Tribunal agreed.

32. The Tribunal received an undated signed letter of support from Michael on 24 October 2023. The letter states that the applicant had a good marriage with the sponsor up to the date of his death and that he is certain that their marriage would have continued had he not passed away. He states that the applicant has been a true wife to the sponsor in every sense. They took care of each other and did most things together. The sponsor was happy.

    Are the other requirements for a spouse relationship met?

33. The Tribunal accepts that the applicant was suffering from some anxiety during her appearance before the Tribunal and the Tribunal has been mindful of that in making its findings. The Tribunal found the applicants responses to be vague, contradictory, lacking in detail and unconvincing. For the following reasons, he Tribunal s not satisfied that the applicant was the spouse of the sponsor within the meaning of the Migration Act either at the time of application or at the time of this decision.

34. The Tribunal has considered the financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

35. There is no substantive evidence of how the parties shared their financial resources or even what those resources were. The applicant provided the Tribunal with no bank account statements which would assist the Tribunal in making a favourable finding. The applicant claims to deal only in cash and there is no evidence of her expenditure or what she spends it on. There was a private rental arrangement with her brother which involved a cash payment, inclusive of utilities, so there are no bills, rental agreements or indeed anything in joint names except the bank account to demonstrate that the parties had, or didn’t have, assets, liabilities or legal obligations each to the other or that they shared expenses.

36. The applicant claims there is no will as the sponsor had no assets or belongings except an old car which she gifted to the sponsor’s daughter.

37. The Tribunal is not satisfied that the financial aspects of the parties’ relationship supports a finding that they were in a genuine, ongoing or committed spousal relationship, or that they lived together at the time of application or at the time of the sponsor’s passing.

38. The Tribunal has considered the nature of the parties’ household and the social aspects of the relationship – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework; the extent to which they presented themselves to others as a married couple and the opinion of friends and acquaintances about the nature of the relationship.

39. The Tribunal has before it eight statutory declarations from friends and family stating that the marriage between the sponsor and the applicant was genuine and that they lived together. The Tribunal only has a small number of photographs before it of the applicant attending the funeral and gravesite of the sponsor and two undated photographs of the applicant and the sponsor together.

40. There are no photographs of the parties together at social engagements, with family members or indeed anywhere else at all.

41. There are many statutory declarations from friends and family members stating that the parties lived together and enjoyed a genuine marriage. Friends have stated that they visited the parties at their shared home. The applicant states, as do her friends and family, that she cooked and took care of the house. She also attended to his medicines when he was ill.

1. It would be unreasonable for the Tribunal to ignore these sworn statements and it does give them some positive weight. However, there is little, if any, other evidence to corroborate statements from people who are well-meaning friends and family, keen to support the applicant’s request to remain permanently in Australia.  She has her mother and siblings here and has found work she enjoys. She has made a life here. However, these statements do not outweigh the dearth of other reliable evidence to corroborate the applicant’s claim and more importantly, they do not allay the Tribunal’s concerns about the relationship.

2. The Tribunal accepts that the applicant and the sponsor were known to each other and spent some time together. Perhaps even lived together in Busby for a time. There is evidence of several letters sent to them at that address.

3. However, the applicant’s account of significant aspects of their lives, especially the sponsor’s passing, the inconsistencies in her statements about how she found out and who informed her are very troubling. It seems to the Tribunal that the applicant was not treated by the family or the authorities as the central person in the sponsor’s life at the time of his illness and death. If she was, then surely, she would have been at the centre of these events. As it was (on one account) she was told by his friends that he had a stroke in the morning, but in another account, she was not even informed that he was unwell, but told of his passing later in the afternoon.  She had no involvement in the arrangements for the funeral but did greet mourners at the church.

4. Equally troubling is the fact that, despite allegedly not being close to his son Michael, the sponsor passed away at his house. This is almost an impossible coincidence unless the sponsor was also living there. The Tribunal put this concern to the applicant at the hearing on two separate occasions and whilst she denied it at the time, she has not sought to otherwise allay the Tribunal’s concerns.

5. Be that as it may, Michael was the one that travelled with the sponsor to the hospital and made the arrangements to notify the relevant authority. The applicant seems to have been an afterthought in terms of notification and even she has said first it was his friends who informed her in the morning before adjusting her account to saying that Michael told her later in the afternoon. The Tribunal accepts that the death of someone can be destabilising however the Tribunal would fully expect that the applicant, some five years after the fact, would have a fully developed memory of what happened on the day her husband died.

6. The Tribunal is not satisfied, on the basis of the evidence before it, that the nature of the parties’ household or the social aspects of their relationship support a finding that they had a mutual commitment to a shared life together or that they did not live separately and apart on a permanent basis.

7. The Tribunal has considered the nature of persons' commitment to each other – including the duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

8. The parties claim to have met in person for the first time in August 2015. The sponsor was visiting Vietnam at the time, and they were introduced by one of the applicant’s brothers. The applicant has not said how her brother was known to the sponsor. The sponsor remained in Vietnam for only 10 days before departing. She did not recount to the Tribunal whether they spent any time together over those 10 days.

9. The applicant subsequently arrived in Australia on 24 November 2015 and, according to her statement, the sponsor proposed marriage to her during Chinese New year in 2016 (8 February 2016). She was, however, still married to another man at this time.

10. The Tribunal finds it difficult to accept that a relationship could develop so quickly, over a period of several months, when most of that time was spent apart living in different countries. The applicant did not tell the Tribunal whether or how they communicated during their time apart. Indeed, the applicant told the Tribunal that she had not come to Australia to see the sponsor, but to visit her mother who was seriously ill, and her sister. She said that she had not contemplated seeking a divorce from her husband at that time.

11. This suggests to the Tribunal that the marriage proposal, if there was indeed one at that time, was contrived to accommodate a timeline, being the time it would take to obtain a divorce from the applicant’s husband and the cessation of her visitor’s visa. An easy-to-remember date was chosen for the proposal.

12. The applicant gave no reason as to why she would want to marry a man that she had not even considered as a romantic partner mere weeks before apparently accepting his proposal, whilst she was still married to someone else whom she had no intention of divorcing. The sponsor had been divorced since 1992 and there is no indication in any of the evidence that in the thirty years he remained single he was unhappy or was seeking to remarry.

13. IF the marriage proposal was genuine and the intention was to live together as spouses to take care of each other in their advancing years, then it seems incongruous to the Tribunal that they would then wait a full five months before they decided to share a home together. The engagement was in February and the applicant told the Tribunal that they did not live together until after the wedding on 31 July 2016. The Tribunal accepts that a legal marriage could not have occurred before that time as the applicant’s divorce was not finalised. However, they still could have lived together. In the Tribunal’s mind, a more likely explanation is that the marriage was one of convenience to ensure that the applicant could remain in Australia with her family, including her mother and did not reflect the genuine intention of either party to live together as spouses in a long-term, committed, spousal relationship.

14. 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 or the time of this decision.

    CONCLUSION

15. The question before the Tribunal is whether the applicant and the sponsor were in a spousal relationship envisaged by the Migration Act at the time of the sponsor’s death on 30 August 2018 or that they would have been in a continuing spousal relationship had he not passed away.

16. For the reasons above, the Tribunal is not satisfied that the requirements of s 5F(2) were met at the time of application or at the time of the sponsor’s passing. The applicant therefore does not meet cl.820.211(2)(a) or 820.221.

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

    DECISION

18. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Ann Duffield
    Senior Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (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).