Tieu (Migration)

Case [2025] ARTA 294

TIEU (MIGRATION) [2025] ARTA 294 (18 MARCH 2025)

DECISION AND  

REASONS FOR DECISION

Applicant:Mr Ngoc Tri Duc Tieu

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:  2212156

Tribunal:General Member T. Quinn

Place:Melbourne

Date:  18 March 2025

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

Statement made on 18 March 2025 at 2:22pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – genuine and continuing relationship – relationship registered – financial, household and social aspects of relationship and nature of commitment – inconsistent evidence and unpersuasive explanations – relationship to secure positive migration outcome – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5CB(2), 65, 338(2), 347
Migration Regulations 1994 (Cth), rr 1.09A(2), (3), 1.15A(3), 4.12, Schedule 2, cl 820.211(2)

CASES
Chand v MIEA (unreported, FCA, 7 November 1997)
He v MIBP [2017] FCAFC 206
MIBP v Angkawijaya [2016] FCAFC 5
MIMA v Lay Lat [2006] FCAFC 61
MIMA v Rajalingham (1999) 93 FCR 220
Nejad v MIMA [1999] FCA 1827; [2000] FCA 741
Re MILGEA and Dhillon [1990] FCA 144
Re MIMA; ex parte Durairajasingham [2000] 168 ALR 407
Sein v MIMA (2001) 114 FCR 370
Selvadurai v MIEA [1994] FCA 1105, (1994) 34 ALR 347
“T” v MIMA [2000] FCA 467
Wang v MIMA [2000] FCA 963

STATEMENT OF REASONS

APPLICATION FOR REVIEW

  1. On 15 February 2019, the applicant (‘the applicant’ or ‘Mr Tieu’) applied for a Partner visa[1] (‘the visa’) based on his relationship with Phuong Ta Kieu Nguyen (‘the sponsor’ or ‘Ms Nguyen’).[2]  

    [1]           Specifically, a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa.

    [2]Pursuant to section 65 of the Migration Act 1958 (‘the Act’). At the time of the applicant’s application, Class BS contained only one subclass: Subclass 801 (Partner) and Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of these visas are set out in Parts 801 and 820 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.

  2. On 1 August 2022, a delegate of the Minister for Home Affairs (‘the delegate’) refused the applicant’s partner visa application, not being satisfied that the applicant was the genuine de facto partner of the sponsor as defined by section 5CB of the Act (‘the delegate’s decision’).[3]

    [3]         See clauses 801.221 or 820.211 of the Migration Regulations 1994 (‘the Regulations’).

  3. On 19 August 2022, the applicant applied for a review of the delegate’s decision with the Administrative Appeals Tribunal (‘AAT’).[4]

    [4]Pursuant to sections 338(2) and 347 of the Act. This application for review was in relation to the decision to refuse the subclass 820 temporary partner visa as is customary in the review of combined partner application refusals given only one decision can be…

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Details
AGLC
Tieu (Migration) [2025] ARTA 294
Case
[2025] ARTA 294
Decision Date

CaseChat Overview and Summary

The case of Tieu v Minister for Immigration [2025] AATA 12 involved a challenge against the refusal to grant the applicant a Partner (Temporary) (Class UK) visa. The applicant, a Vietnamese national, applied for the visa on the basis of a relationship with a woman who was a citizen of Australia. The application was denied, and the applicant sought review of that decision before the Administrative Appeals Tribunal (AAT). The primary issue before the Tribunal was whether the applicant and the sponsor were in a genuine and continuing de facto relationship as required by the Migration Act. The Tribunal had to consider various aspects of the relationship including financial, household, social, and the nature of the commitment between the applicant and the sponsor.

The Tribunal examined the evidence provided by both the applicant and the sponsor. There were inconsistencies in their accounts regarding the financial aspects of their relationship, such as the use of a joint bank account and the source of the applicant's income. The sponsor's mother also provided evidence that conflicted with the applicant and sponsor's statements. The Tribunal noted the lack of satisfactory explanations for these inconsistencies and the absence of convincing evidence to support a genuine relationship. The Tribunal was not persuaded by the explanations offered regarding the financial arrangements and the nature of the relationship. The evidence did not convincingly demonstrate that the relationship was genuine and of a kind contemplated by the Migration Act.

In conclusion, the Tribunal found that the applicant had not satisfied the requirements of a genuine and continuing de facto relationship. The decision of the Minister to refuse the visa application was affirmed. The Tribunal did not accept the applicant's evidence as reliable or sufficient to establish the necessary relationship. The Tribunal's decision was based on the inconsistencies and lack of credible evidence provided by the applicant and the sponsor. The Tribunal upheld the original decision, and the applicant's application for the visa was denied.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant has travelled many, many times to Vietnam for his work.Evidence Generally Although there was some consistent evidence given at hearing, there were many inconsistencies regarding critical matters that suggest to me this is not a genuine spousal relationship. The applicant has filed post hearing submissions regarding some of the inconsistencies at hearing. These submissions have been read and carefully considered, even if not expressly referred to. I note they also do not address much of the very problematic evidence given by the sponsor’s mother at hearing, in particular the relationship between the sponsor and her father and the nature of the relationship between the sponsor’s parents with each other. I took the applicant’s representative through many of the aspects of Ms Ta’s evidence which I was concerned about when indicating that I would grant the parties a further week to file any post hearing submissions. I am troubled by the fact that nothing has been filed addressing the inconsistent evidence given by Ms Ta compared to the sponsor’s and the applicant’s evidence at hearing.Financial aspects of the Relationship 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; and any sharing of day-to-day household expenses must be considered when assessing the financial aspects of the relationship. The applicants have filed evidence of a joint bank account; however, the transactions appear to reflect relatively limited use of the account. The evidence before me is that the applicant and sponsor have lived with the sponsor’s mother and the sponsor’s four siblings since November 2018. The evidence at hearing was consistent that the sponsor’s brother Tommy bought a house in 2021 where the family currently live. However, the applicant and sponsor gave evidence that this is a four-bedroom house whereas Ms Ta gave evidence that it is a five-bedroom house. The evidence at hearing was consistent about the sponsor and applicant’s workdays and hours. The applicant was well versed in the working environment and history of the sponsor including that she presently works at the same company as two of her brothers. The evidence was relatively consistent about the applicant and sponsor’s income. However, the applicant gave evidence that his income from his exporting business goes directly to his family in Vietnam whereas the sponsor originally said that his income from this business went into their joint account. When I indicated that the joint account statements provided did not seem to indicate this, she said it goes into his own account. When I put this inconsistency to the applicant, he said he used to put the money into their joint account and after that he spends it for his family in Vietnam. I was not persuaded by this explanation. The evidence was consistent that the sponsor commenced work shortly after completing high school and gives the majority of her income to her mother to support family and household expenses. The evidence at hearing was that Ms Ta does not work and receives government benefits.

Decision

Reasons for decision

I am not satisfied that the requirements of section 5CB are met at the time the visa application was made or at the time of this decision.DECISION The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.Dates of hearing(s): 6 March 2025Representative for the Applicant: Mr Michael Hanrahan (MARN: 1463825)ATTACHMENT - Extract from Migration Regulations 19941.09A De facto partner and de facto relationship(1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.Note 1 See regulation 2.03A for the prescribed criteria applicable to de facto partners.Note 2 The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).

Ratio Decidendi

Legal Principle Established

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