Tran (Migration)

[2023] AATA 4723

Tran (Migration) [2023] AATA 4723 (28 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Minh Mat Tran

VISA APPLICANTS:  Mrs Thi Hong Mai Vo
Miss Vo Hong Ngoc Bui
Miss Vo Nhu Quynh Bui
Miss Vo Yen Nhi Bui
Miss Vo Gia Han Bui

REPRESENTATIVE:  Ms NGUYEN DAN-PHUONG (MARN: 9474940)

CASE NUMBER:  1835742

DIBP REFERENCE(S):  BCC2017/2074890

MEMBER:Mila Foster

DATE:28 November 2023

PLACE OF DECISION:  Sydney

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

Statement made on 28 November 2023 at 6:36pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – financial aspects – nature of the household – social aspects – nature of the commitment – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 309.211, 309.311

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 on 26 November 2018 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 9 June 2017. The first named visa applicant applied on the basis that she was in a spouse relationship with the review applicant. The second, third, fourth and fifth named visa applicants applied on the basis that, as the first named visa applicant’s daughters, they were members of her family unit. 

3. At that time the visa applications were made Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Any members of the family unit who are applicants for the visa need satisfy only the secondary criteria.

4. The delegate refused to grant the visa to the first named visa applicant on the basis that she did not satisfy cl 309.211 because there was insufficient evidence that she was in a spouse relationship with the review applicant and hence she did not meet cl 309.211(2). Further, as she was in a valid marriage with the review applicant she did not meet cl 309.211(3). As the first named visa applicant was refused the visa the delegate refused to grant visas to the second, third, fourth and fifth named visa applicants (the secondary visa applicants) as they had applied for the visa on the basis of family membership.

5. The review applicant appeared before the Tribunal on 1 September 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the first named visa applicant by telephone. The hearing was conducted with the assistance of an interpreter in the English and Vietnamese languages.

6. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing and made brief oral submissions at the end of the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the first named visa applicant and the review applicant (the parties) were in a spouse relationship at the time of application. In considering this issue the Tribunal has had regard to all the evidence before it about their relationship up to the time of its decision.

   Background and summary of claims

9. It is claimed that the applicant is a 60-year-old Australian citizen and resident who was born in Vietnam.

10. It is claimed that the first named visa applicant is a 50-year-old citizen and resident of Vietnam.

11. The parties claim they met in February 2012 when the first named visa applicant came to Australia on a visitor visa. They claim they did not have further contact until January 2015 when they began communicating with each other by phone. They claim they met again when the review applicant went to Vietnam in November 2015. They claim that on that trip the review applicant expressed his affection for the first named visa applicant and she accepted his love. They claim that after the review applicant returned to Australia they communicated with each other by phone and Facetime. The review applicant had a period of imprisonment in Australia from August 2016 to February 2017 during which time it is claimed the parties did not have contact but that upon his release the review applicant contacted the first named visa applicant who said she still loved him. The parties claim the review applicant proposed to the first named visa applicant on 28 February 2017 and she accepted his proposal. They claim the review applicant returned to Vietnam and they married on 26 April 2017. The parties claim that since then the review applicant has returned to Vietnam to visit the first named visa applicant in 2019 and 2022.

12. The parties claim they each had prior spouse and de facto relationships. The review applicant claims he was in a de facto relationship from 1986 to 2004 and that he had four sons with his former partner who are now aged 36, 32, 28 and 22 years. The first named visa applicant claims she had been married from 1988 until 2013 and that the secondary visa applicants are her children with her former spouse. It is claimed that the second, third, fourth, and fifth visa applicant are aged 23, 21, 18 and 16 respectively; they are all Vietnamese citizens, and apart from that the second named visa applicant who is studying in Australia, they reside in Vietnam with their mother.

    Outline of evidence

13. The evidence before the Tribunal includes the Department of Home Affairs file relating to the visa application,[1] documentary and photographic evidence provided on review, and the oral evidence given at the hearing.

    [1] CLF2017/2074890 (DF).

14. Documents on the Department file include the visa application form, personal documents relating to the visa applicants, and written statements the review applicant and the first named visa applicant made about their relationship on 13 May 2017 and 6 June 2017 respectively.  According to the delegate’s decision record and a record on the Department file,[2] photographs of the parties’ wedding ceremony and the reception at a restaurant were submitted in support of the visa application as were other photographs of the parties and with other people on different occasions, hotel receipts in Ho Chi Minh City from 31 March to 1 April 2017 and 28 April 2017 to 1 May 2017, and phone bills showing calls from the review applicant to the first named visa applicant from January to July 2016. The originals of this evidence were returned to the first named visa applicant after the delegate’s decision was made[3] without, as seems to be the Department practice, of making a photocopy of that evidence for the file. Hence, the Tribunal does not have that evidence before it.

    [2] DF, p.155.

    [3] Case note dated 28 November 2018: DF, f.174.

15. Evidence submitted on review included:

    a.Written statements made by the review applicant on 12 December 2022 and by the first named visa applicant on 9 December 2022.

    b.10 affidavits from family and friends of the first named visa applicant in Vietnam including her uncle, aunt, best friend, and neighbours.

    c.8 statutory declarations made by family and friends of the parties in Australia including the review applicant’s aunt, nephew and landlord; and the visa applicant’s sisters. 

    d.Unannotated photographs.

    e.Various documents including receipts, phone records, and money transfer receipts quite a number of which are in Vietnamese and have not been translated into English.[4]

    f.Post-hearing statements made by the review applicant and first named visa applicant on 11 November 2023 in response to an invitation sent to the review applicant in accordance with s 359A.

    [4] Paragraph 7.11 of the Migration and Refugee Division Practice Direction requires all documents lodged with the Tribunal that are not in English to be translated into English by a NAATI Certified Translator.

    Credibility issues

16. A number of issues with the claims and evidence raise concerns about the credibility of the parties and the people who provided affidavits and statutory declarations in support of the review application. These issues were raised with the review applicant at the hearing and in the post-hearing invitation.

17. In their written statements the parties claimed that they met at a church in Australia when they were introduced to each other by Thi Tuyet Huong Vo who is one of the first named visa applicant’s sisters and said to be a friend of the review applicant. However, the sister stated in a statutory declaration she made on 17 May 2019 that the parties met at a gathering of people from their hometown. The sister did not mention in her statutory declaration that the parties met at or attended a church when the first named visa applicant visited Australia in 2012. Asked about this discrepancy at the hearing the review applicant stated that the parties met for the first time at church and the second time at a gathering. This does not explain the inconsistency in the evidence about where the parties first met. Given it is claimed that Thi Tuyet Huong Vo is the first named visa applicant’s sister and a friend of the review applicant, and that she introduced them to each other the Tribunal expects that she would be able to recall that she introduced them to each other at church.

18. According to information the first named visa applicant provided in the visa application form, she has three sisters residing in Australia. This indicates that the first named visa applicant’s eldest daughter (the second named visa applicant) has three maternal aunts in Australia. However, the review applicant stated at the hearing that the second named visa applicant had two maternal aunts here. This inconsistency was put to the review applicant in the post-hearing invitation however in their responses neither the review applicant nor the first named visa applicant addressed the discrepancy. They referred instead to what the Tribunal asked the first named visa applicant and how she responded. The Tribunal expects, given the length of time the parties claim they have been in a relationship and it is claimed that the review applicant is friends with one of the first named visa applicant’s sisters, that the review applicant would know that the first named visa applicant has three sisters in Australia and hence that her eldest daughter has three maternal aunts in Australia. 

19. The review applicant stated at the hearing that his sister, Thi Xoi Tran, had never met the first named visa applicant. However, his sister stated in a statutory declaration she made on 31 May 2019 that she met the first named visa applicant in a group of people from the same village and at a few gatherings when the first named visa applicant visited Australia. This inconsistency was put to the review applicant in the post-hearing invitation. He responded that the group of compatriots consisted of hundreds of people, if his sister met the first named visa applicant in the group of compatriots it was a meeting in a group however his sister had never met or talked to the first named visa applicant in private. The first named visa applicant stated in her post-hearing statement that she had met the review applicant’s sister in the compatriot association but since falling in love and marrying the review applicant she had only met his sister through Facetime calls. The distinction between the review applicant’s sister and the first named visa applicant meeting in a group setting or in a so-called private setting is not relevant to the question the review applicant was asked - whether his sister and the first named visa applicant had ever met. Further, if the review applicant considered the distinction relevant then the Tribunal expects he would have qualified his statement at the hearing and stated that while his sister and the first named visa applicant had not met in private they had met in a group setting.

20. At the hearing the review applicant stated that the first named visa applicant had had phone contact with his sons in Australia. The review applicant’s nephew in Australia, The Thanh Pham, stated in a statutory declaration he made on 31 May 2019 that he sometimes spoke to the first named visa applicant on the phone. However, when asked at the hearing which of the review applicant’s family in Australia she had had phone contact with, the first named visa applicant referred only to his sister. This inconsistency was put to the review applicant in the post-hearing invitation however the post-hearing statements made by the parties do not address the matter. They indicated that the first named visa applicant had been mistaken in only referring to the review applicant’s grandchildren. The issue is that the first named visa applicant said she had spoken to the review applicant’s sister and did not mention talking to the review applicant’s sons and nephew. The Tribunal expects that the first named visa applicant would not be ‘mistaken’ about whether she had contact with the review applicant’s four sons and nephew.

21. The review applicant claims he lives in a granny flat at the back of the home of Van Thuan Nguyen. The review applicant submitted to the Tribunal a statutory declaration Mr Nguyen made on 30 August 2019 in which he stated that he came to know the first named visa applicant when the review applicant brought her home to introduce her to him. At the hearing the first named visa applicant said she could not recall being introduced to Mr Nguyen. This was put to the review applicant in the post-hearing invitation. In their post-hearing statements, the parties said that the review applicant shared a room at Mr Nguyen’s house but the first named visa applicant had not visited Mr Nguyen. They suggested that Mr Nguyen may have confused the first named visa applicant with her younger sister when she came to collect gifts the first named visa applicant had sent for her daughter and sisters. There is no evidence from Mr Nguyen that he had been confused when he made his statutory declaration. The Tribunal notes that Mr Nguyen says the review applicant had lived at his granny flat for 4 years and he had known the first named visa applicant for 3 years. Both periods are after the first named visa applicant visited Australia in 2012. However, the Tribunal finds it hard to believe Mr Nguyen could have been mistaken about being introduced to the first named visa applicant as claimed. Mr Nguyen’s statutory declaration was in the form of a Form 888 ‘Statutory declaration by a supporting witness in relation to a Partner or Prospective Marriage visa application’. The form asks the declarant to state how they know the visa applicant and their partner/fiancé, and to indicate how often the declarant had had contact with parties. Further, the declarant is asked to state whether they believe the relationship between the visa applicant and partner/fiancé is genuine and continuing, and to give their reasons for the belief. Thus, the Tribunal expects that Mr Nyugen would have reflected specifically on when and how he met the first named visa applicant and how long he had known her. In that context it is hard to believe he would be mistaken about whether or not he had been introduced to the first named visa applicant and confuse her with her sister. Further, the parties did not explain why the first named visa applicant would send gifts for her daughter and sisters in Australia to the review applicant rather than directly to her daughter and sisters.

22. The review applicant claims he visited the first named visa applicant in Vietnam and lived with her at her home from 10 to 20 November 2015, from 26 March 2017 to 15 May 2017, from 10 to 24 June 2019, and from 17 to 29 June 2022. Asked at the hearing what the parties’ average day was like when they lived together at the first named visa applicant’s home, the review applicant stated that the two of them started their day with a 30 minute to 1 hour walk, followed by coffee and then breakfast before the first named visa applicant took her children to school. In contrast the first named visa applicant told the Tribunal that she woke before the review applicant, prepared breakfast, then after he woke the two of them had coffee before the children were taken to school. The most significant inconsistency in these two accounts is that the review applicant claimed the parties went for a 30-to-60-minute walk at the start of the day whereas the first named visa applicant made no mention of any walks. In his post-hearing statement, the review applicant appeared to change his evidence stating that he walked just one or two days in a week. The first named visa applicant stated in her post-hearing statement that she and the review applicant had only walked several times. Not only was there a difference in their oral evidence but their written statements were not consistent – the review applicant indicating he went for a walk once or twice a week and the first named visa applicant indicating they both went for walks but only several times not once or twice a week. There is thus a noteworthy difference in their evidence about who went for a walk in the morning and the frequency of the walks.

23. The review applicant was not able to accurately recall the people who had provided the 10 affidavits he himself had submitted to the Tribunal even though they claimed to be friends, acquaintances and/or family of the first named visa applicant who had met him and socialised with him when he visited the first named visa applicant in Vietnam – most had even claimed to have attended the parties wedding ceremony. Of those he could recall his evidence about who they were and his contact with them was vague and uncertain.

    a.Hoang Mai Pham stated in her affidavit[5] that she was the first named visa applicant’s best friend. She said she had attended the parties’ wedding ceremony, and that she talked to and went out for coffee with the review applicant often when he returned to Vietnam. She referred to the parties as her ‘two friends’ and stated that she believed they loved each other very much. Yet when asked at the hearing who Hoang Mai Pham was the review applicant said he could not recall.

    [5] Affidavit made on 8 June 2019.

    b.The review applicant was next asked who Tu Thanh Loi was. Mr Loi stated in her affidavit[6] that she was a ‘neighbour friend’ of the first named visa applicant. She said she had attended the parties’ wedding ceremony and that every time the review applicant returned to Vietnam she met and often talked to the parties. However, the review applicant told the Tribunal Ms Loi was from Vietnam so he did not know who she was.

    [6] Affidavit made on 8 June 2019.

    c.The Tribunal then asked the review applicant who Thi Dong Bui and Thu Nam Mai were. Ms Bui indicated in her affidavit[7] that she was the first named visa applicant’s aunt, she referred to the review applicant as her ‘nephew-in-law’. She stated that when the review applicant returned to Vietnam, he visited her family and participated in family meals. Mr Mai stated in his affidavit[8] that he was a friend of the first named visa applicant. He said he participated in the parties’ wedding ceremony and that when the review applicant returned to Vietnam they often went for a coffee and beer together. He referred to the parties as his ‘two friends’ and said he believed they loved each other very much. The review applicant told the Tribunal they were from Vietnam and so he did not recall them although as will be indicated below he later recalled that Thi Dong Bui was the first named visa applicant’s aunt.

    [7] Affidavit made on 11 June 2019.

    [8] Affidavit made on 8 June 2019.

    d.The Tribunal then decided to show the review applicant the 10 affidavits specifically the photocopies of the Vietnamese ID card of the declarants attached to the front of their affidavits. Every ID card bore a photograph of and the full name of each declarant. The Tribunal asked the review applicant which of them he recognised. The review applicant identified Van Truyen Nguyen as an acquaintance of the first named visa applicant and Dinh Tien Nguyen as her uncle. Van Tran Nguyen stated in his affidavit[9] that he was a friend of the first named visa applicant. He said he had attended the parties’ wedding ceremony and occasionally met the parties at church. Dinh Tien Nguyen[10] stated that he was the first named visa applicant’s uncle. He said the review applicant visited his family on each return to Vietnam. The Tribunal expects that if the review applicant could recall an acquaintance of the first named visa applicant that he only met occasionally he would have been able to recall friends of the first named visa applicant who claimed to meet him often every time he returned to Vietnam.

    [9] Affidavit made on 8 June 2019.

    [10] Affidavit made on 11 June 2019.

    e.The Tribunal then asked the review applicant whether he knew Thi Anh Tran. She stated in her affidavit[11] that she was a childhood friend of the first named visa applicant. She said she had met the review applicant in 2009 when she travelled to Australia and met him each time he returned to Vietnam. The review applicant told the Tribunal she was an acquaintance of his wife. Asked whether he recalled meeting her, he replied that he did, every time he returned to Vietnam.

    [11] Affidavit made on 6 June 2019.

    f.The Tribunal put to the review applicant its surprise that he did not know the other people who had provided affidavits as they stated they had met him when he returned to Vietnam and in most cases met him often. The review applicant responded that he could not recognise the photographs. Asked whether he had looked at their names, he said he did.

    g.The Tribunal noted there was an affidavit from Dac Tam Huynh[12] who stated he was the first named visa applicant’s business partner. Mr Huynh stated he had been invited to the parties’ wedding ceremony and indicated he sometimes went out for coffee with the first named visa applicant and the review applicant when the review applicant returned to Vietnam. Mr Huynh stated that he believed and knew for sure that his ‘two friends’ loved each other very much and their marriage was true. The review applicant stated that his wife had told him about Mr Huynh. Asked whether he could recall that he was her business partner. The review applicant was hesitant and finally stated that he did not recall him.

    [12] Affidavit made on 11 June 2019.

    h.The remaining affidavits were from Thi Hong Ngoc Pham[13] and Quoc Viet Nguyen.[14] Ms Pham said she was a friend of the first named visa applicant. She said she participated in the parties’ wedding ceremony, became acquainted with the review applicant when he was introduced to her by the first named visa applicant. She referred to the parties as her ‘two friends’ and indicated that the parties loved each other very much. Mr Nguyen indicated that he lived close to the first named visa applicant. He said he was invited to the parties’ wedding ceremony and every time the review applicant returned to Vietnam, he talked to the parties often. The Tribunal told the review applicant the people who had provided affidavits had said they socialised with him in Vietnam and put to him that it seemed he would be able to recall them if that had been the case. The review applicant said he could not recall.

    [13] Affidavit made on 8 June 2019.

    [14] Affidavit made on 9 June 2019.

    i.The Tribunal then noted that Thi Dong Bui claimed to be the first named visa applicant’s aunt. The Tribunal showed the review applicant her affidavit again. He then said he remembered her. Asked if she was the first named visa applicant’s maternal or paternal aunt, the review applicant replied that he was not sure. The Tribunal noted that she claimed he always visited her family when he returned to Vietnam and mentioned that he participated in family meals and family activities each time he returned to Vietnam. The Tribunal questioned how then he could not recall her. The review applicant responded that once or twice he went to her paternal aunt’s place to have meals. Ms Bui’s affidavit indicates that the review applicant attended family meals and activities more often than that. Further, the Tribunal finds it hard to believe that if the review applicant had met Ms Bui and had family meals with her as she claimed that he would not have been able to recognise either her name or photograph when asked about her and shown her ID card earlier in the hearing.

    j.In his post-hearing statement, the review applicant claimed that he was nervous when the Tribunal had given him the 10 affidavits. He said he was sometimes forgetful, his eyesight was bad and he had to wear glasses. He said that many of the witnesses had declared their full names but in real life, according to Vietnamese custom, they often called each other by their order of birth. So, he said, he was confused and only recognised 3 people even though he knew all the witnesses.

    k.The Tribunal did observe at the hearing that the review applicant seemed nervous. However, the Tribunal does not believe that this adequately explains to a substantial extent his failure to recognise the witnesses given they all claim to have met him in person, all claim to have met him more than once, most claim to have attended his wedding, most claim to have met him each time he returned to Vietnam or to have met him often or in intimate circumstances such as family meals.

    l.There is no medical evidence before the Tribunal to indicate that the review applicant has any memory issues which would affect his ability to recollect people he had met as frequently and in the circumstances claimed by the declarants. The Tribunal thus does not accept that forgetfulness explains the review applicant’s failure to recall most of the people who provided the affidavits.

    m.The Tribunal’s recollection is that the review applicant used glasses to view the affidavits. The Tribunal expects this would have enabled the review applicant to see the ID photographs. If the Tribunal’s recollection is incorrect and the review applicant did not use glasses, then the Tribunal expects he would have used them or informed the Tribunal at the hearing that he did not have them or had poor eyesight. The Tribunal thus does not accept he could not recall most of the people who had provided affidavits due to his poor eyesight.

    n.If the review applicant could not understand the names as pronounced by the Tribunal or the interpreter then the Tribunal expects he would have asked for the names to be repeated or spelled. The Tribunal informed the review applicant at the very beginning of the hearing that he should inform the Tribunal immediately if he had any issues relating to the interpreting or if he did not understand the Tribunal. He was also asked at the beginning of the hearing whether he understood the interpreter and he informed the Tribunal that he did.

    o.If the review applicant knew the declarants by different names according to Vietnamese custom then, again, the Tribunal expects he would have either recognised them from their photographs or informed the Tribunal that he knew them by their ‘real life’ names rather than the names that appeared on their ID cards and hence could not identify them for that reason. Instead, what he told the Tribunal was that he could not recall them. Further, he was able to correctly identify without any prompting that Thu Nam Mai was the first named visa applicant’s friend, Van Truyen Nguyen was a friend of the first named visa applicant, and Dinh Tien Nguyen was the first named visa applicant’s uncle when asked who they were based on their full names on their ID cards.

    p.The review applicant had ample opportunity at the hearing to raise his eyesight, the pronunciation of the names and the names by which he knew the declarants but did not do so. Even though the Tribunal informed him at the hearing that his inability to recall or correctly identify the declarants surprised the Tribunal he did not raise these matters by way of explanation.

    q.The first named visa applicant stated in her post-hearing witness statement that the review applicant was very scared at the time, his eyesight is bad, and the declarant’s names were not clearly read out. The first named visa applicant was not present when the review applicant gave his evidence so she could have not firsthand knowledge of this. She said his eyesight was bad but as already noted the review applicant failed to mention this as an issue at the hearing. She said there was confusion in part because the review applicant called the declarants by their familiar names when he returned home. Again, this was not raised by the review applicant at the hearing.

    r.Both the review applicant and first named visa applicant stated that they were not well-educated. The parties were being asked about their relationship, people who claimed knew them and were aware of their relationship. These are matters personal to them and hence knowledge of those matters are not dependent on having a high education nor are they complicated matters that would be difficult for a person with a low level of education to convey. The first named visa applicant also claimed that she was shaking and spoke quickly when she gave her evidence making it hard to hear. It was not apparent to the Tribunal that the first named visa applicant was nervous or anxious; in fact she appeared to speak with confidence. Nor did she seem to speak especially quickly. The first named applicant also suggested these matters may have made it hard for the interpreter to translate. That it may have been hard for the interpreter to hear appears mere speculation on the part of the first named visa applicant nor is it apparent why the parties’ low level of education would have made it hard for the interpreter. It is commonplace for an interpreter to request permission from the Tribunal to ask the person they are interpreting to repeat what they have said or to seek clarification if needed. Finally, the Tribunal notes that at the end of the hearing the representative stated that the interpreter did a fabulous job.

    s.The Tribunal thus rejects the explanations given by the review applicant and first named visa applicant for the inconsistencies.

    t.For the above reasons the Tribunal does not consider the review applicant, the first named applicant, or the declarants who made affidavits and statutory declarations credible.

    Whether the parties are in a spouse / de facto relationship

1. Clause 309.211(2) requires that at the time the visa application was made the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. An applicant who meets cl 309.211(2) will satisfy the criterion in cl 309.211.

2. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

   The review applicant’s immigration status/citizenship

3. The Tribunal has before it an Australia citizenship certificate which certifies that the review applicant acquired Australian citizenship on 1 December 1995. The Tribunal thus finds that the review applicant is an Australian citizen.

   Are the parties validly married?

4. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.

5. The Tribunal has before it an English translation of a marriage certificate which states that the parties’ marriage was registered by Vietnamese authorities on 26 April 2017.

6. Based on a judgment by the People’s Court of Bien Hoa City made on 23 December 2013, which was submitted to the Department, the Tribunal is satisfied that the first named visa applicant’s prior marriage ended by divorce on that date.

7. There is no evidence before the Tribunal that the review applicant was married or in a de facto relationship with anyone else when the parties’ marriage was registered in Vietnam.

8. On the evidence, the Tribunal is satisfied that the parties were married to each other on 26 April 2016 under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

   Are the other requirements for a spouse relationship met?

9. Financial aspects of the relationship It is claimed that the first named visa applicant is self-employed having a small, home-based carpentry business. It is claimed that the review applicant has been receiving a government Carer payment for the last 5 years for caring for a friend. The parties do not jointly own any real estate or other major assets or have any joint liabilities. They have not pooled their financial resources and neither owes any legal obligation in respect of the other.  They do not have a household together and hence there is no sharing of day-to-day household expenses. As the parties reside in different countries the Tribunal has not drawn any adverse inferences from these matters.

10. The first named visa applicant stated in her written statement of 9 December 2022 that the review applicant subsidised her about 4 times a year by sending her $300 to $400 to help pay for her children’s education. In his statement of 11 December 2022, the review applicant indicated he sent the first named visa applicant money 4 to 5 times (he did not specify over what period) of about $300 to $400 each time. The Tribunal has before it what appear[15] to be over 30 money transfer receipts, most in the amounts of $200 and $300.  However, the Tribunal has given limited weight to the money transfers in assessing the parties’ relationship. While the receipts are evidence that the review applicant sent money to the first named visa applicant, they are not prima facie evidence that he was the source of those funds. The Tribunal does not, for example, have before it documentary evidence such as bank statements to show that the review applicant withdrew funds from his bank account when the money transfers were made to the first named visa applicant. Further, when asked at the hearing why he sent the money the review applicant replied that it was to buy things for her children. Asked whether it was for anything else, the review applicant said that on their birthdays he sent the first named visa applicant money to buy things for them like shoes. The Tribunal noted that the first named visa applicant claimed the money was for her children’s education. He replied it was for education as well. The review applicant initial response was vague. If the money was for the children’s education as the first named visa applicant claimed, the Tribunal expects the review applicant would have specified this when first asked.

    [15] The Tribunal says ‘appears’ as they are in Vietnamese.

11. Asked what the usual arrangement was for paying for household expenses when the review applicant visited the first named visa applicant, the review applicant stated that he did not pay for anything when he was there as he sent money transfers to buy things beforehand. There was no mention in his initial oral evidence or in the parties’ written claims that the money he sent was for any household expenses. Additionally, the parties gave inconsistent evidence about this at the hearing. While the review applicant said he did not contribute to household expenses when he visited, the first named visa applicant stated that he did – she said he paid small amounts for things such as the rubbish collection fee, gas, water. When this inconsistency was put to the review applicant in the post-hearing invitation, he stated he did not contribute money when he stayed with the first named visa applicant but he could recall one time a collector came for the gas fee or electricity fee or hygiene fee and he paid for it just the one time. This still contradicts the oral evidence the first named applicant gave at the hearing as she referred to the review applicant paying small amounts for these things indicating he paid for these more than once. The first named visa applicant contradicted her oral evidence in her post-hearing statement saying that she only told the review applicant to pay a living expense, trash fees, once. Thus, the parties have not given consistent evidence about the contribution the review applicant made to household living expenses when he stayed with the first named visa applicant in Vietnam.

12. For the above reasons and the lack of credibility of the review applicant and the first named visa applicant the Tribunal is not satisfied that the review applicant has been the source of the money transfers sent to the first named visa applicant, that he has provided financial support to the first named visa applicant for her children’s education or for anything else, or that he made any financial contribution to the first named visa applicant’s household expenses. 

13. Nature of the household The parties do not have children together. The first named visa applicant said in her statement of 9 December 2022 that the review applicant loved her children and they loved him like a father. The review applicant referred to the secondary applicants in his statement of 12 December 2022 as ‘very cute and obedient’. At the hearing he said that he did not support her children other than financially. Asked about his relationship with her children, the review applicant’s evidence was general. He said when he called he spoke to them as well, they asked how each other was and he was happy that they asked how he was. He said that if he was sad they cared about him, they told him to keep healthy and take care of himself. The Tribunal has before it a few photographs which appear to show the review applicant with the secondary visa applicants. The Tribunal does not have evidence before it from the secondary visa applicants about their relationship with the review applicant or to support the claim that they loved him like a father. The Tribunal notes that even though the eldest is studying in Australia the review applicant did not mention seeing her. The Tribunal has not accepted that the review applicant financially supported the secondary visa applicants and he states he has not supported them in any other way. Thus, on the evidence the relationship between the review applicant and the secondary visa applicant does not seem close. The Tribunal is not satisfied that they love him like a father. The Tribunal finds that at best the review applicant’s relationship with the secondary visa applicant provides negligible evidence of a genuine relationship between the parties.  

14. As the parties are citizens and residents of different countries the Tribunal draws no adverse inference from the fact they do not have a household together. It is claimed that the first named visa applicant lives with her three youngest daughters and the review applicant lives alone in a granny flat. This is plausible and there is no evidence to contradict the claim and hence the Tribunal accept these are their living arrangements.

15. The parties claim that the review applicant lived with the first named visa applicant when he visited her in Vietnam. According to the delegate’s decision record a temporary household registration document was submitted in connection with the visa application which permitted the review applicant to reside at the first named visa applicant’s home from 26 March 2017 to 25 June 2017 as well as hotel receipts in joint names for a hotel room in Ho Chi Minh City from 31 March 2017 to 1 April 2017 and from 28 April 2017 to 1 May 2017. As indicated those documents are not before the Tribunal but the Tribunal accepts that such evidence was presented. Submitted on review were what appear to be two further hotel receipts stating that the parties were guests. The receipts do not indicate the location of the hotel. They indicate the parties were guests of two different rooms, room 172 and 162, for the same two nights. That the review applicant was granted permission to reside with the first named visa applicant is not strong evidence that he did in fact reside with the first named visa applicant nor are hotel receipts issued to the parties’ compelling evidence that they shared the hotel rooms as couple. The Tribunal gives that evidence little weight in considering the parties’ living arrangements when the review applicant claims he visited the first named visa applicant in Vietnam.

16. There was some consistency in the oral evidence the parties gave at the hearing about the sharing of housework when they claim they lived together. The review applicant claimed he cooked the rice and helped marking timbers (for the first named visa applicant’s business). The first named visa applicant said he cooked rice, mopped floors and helped mark the timbers. However as noted above the parties’ evidence about their average day was inconsistent. Hence the Tribunal gives little weight to their evidence about the sharing of housework.

17. Overall, given the limited nature of the above evidence and the parties’ lack of credibility the Tribunal is not satisfied that the parties lived together as a couple as claimed.

18. Social aspects of the relationship The parties claim they represent themselves to people including family and friends as being married to each other. The review applicant stated in his statement of 12 December 2022 that the parties had a wedding party at a restaurant in the presence of the first named visa applicant mother, siblings, 4 children and 120 guests and relatives. That photographs of their wedding ceremony and wedding party were presented to the Department in support of that claim. That there are photographs of the parties in different settings alone and with other people including the secondary visa applicants indicates that they spent time together in social settings but is not compelling evidence of a genuine relationship.

19. There are family, friends and acquaintances of the parties who declared in their affidavits and statutory declarations that they socialised with the parties and believed the parties’ relationship was genuine. However, in light of the significant issues with the evidence provided by the declarants such that the Tribunal does not regard the affidavits and statutory declarations as reliable, the Tribunal gives them no weight. The lack of credible evidence from family and friends about the parties’ relationship raises serious doubts about the genuineness of their relationship.

20. There is little in the parties’ written claims about the basis on which they plan and undertake joint social activities. At the hearing the review applicant stated that they had coffee with friends and went to listen to music. Asked about any other activities perhaps with the secondary visa applicants, he replied that they went to church together on the weekend and then took the daughters for drinks. In her oral evidence the first named visa applicant mentioned taking the children to church and having coffee with friends. While broadly consistent the oral evidence of both parties was brief and indicates limited joint social activity. Further, that the review applicant had to be prompted to mention regular social activity with the secondary visa applicants who it is claimed he loves and who love him like a father raises doubts about the claim.

21. Overall, the Tribunal finds that the limited evidence of the social aspects of the parties’ relationship is not a persuasive indicator of a genuine spouse relationship.

22. Nature of persons' commitment to each other The parties have now been married for 6 ½ years. This is a significant period of time.

23. The parties claim that they have lived together for a total period of about 3 months. Given the parties are citizens of different countries and the COVID-19 travel restrictions this would not be a negligible length of time. However, the Tribunal is not satisfied that the parties have lived together as a couple for that period of time.

24. The parties claim that they share, confide, and comfort each other over the phone when they are apart but specific examples of the nature of what they have shared, confided and comforted each other about is lacking. What appear to be the first named visa applicant phone bills were provided to the Tribunal (in Vietnamese) and the review applicant phone records for a 6-month period in 2016 were provided to the Department. While such phone records indicate the parties called each other’s number they do not disclose the nature of their communication and hence the Tribunal give them little weight.

25. The parties claim they have future plans which indicate that they view their relationship as a long-term one. Both indicated in their written statements that they hoped to live in Australia together with the secondary visa applicants. In his statement of 12 December 2022, the review applicant stated that he planned to send the children to school in Lakemba and to take care of them. He indicated he and the first named visa applicant would seek suitable work to prepare for the family’s future. At the hearing he said they would rent a house but also mentioned that the first named visa applicant would bring her savings to Australia and purchase property. They both stated at the hearing that the first named visa applicant would run a nail salon. The first named visa applicant stated in her statutory declaration of 9 December 2022 that she and the review applicant had a vision to take care of their children, that they would go to school to improve their knowledge and life skills and become good citizens and contribute to society. At the hearing she said their plan was to rent a house here, her children would attend school, she would open a nail salon and the review applicant would help her. She said she would sell her property in Vietnam and buy a property here. She said she wanted to care for the review applicant as he was old. While the parties’ evidence about their future plans is consistent they are merely assertions and given the parties’ lack of credibility the Tribunal gives them little weight.

26. The Tribunal is not satisfied on the evidence before it that the nature of the parties’ commitment to each other is such that their relationship is genuine and that they intend to live together with the second visa applicants in the future.

27. Any other circumstances of the relationship There are no other relevant circumstances of the relationship.

    Conclusion

28. Having regard to all the evidence before it, the above aspects of the parties’ relationship and the parties’ lack of credibility the Tribunal is not satisfied that at the time of application their relationship was a genuine and continuing relationship. The Tribunal is therefore not satisfied that the requirements of s 5F(2) were met at the time the visa application was made and finds that the first named visa applicant was not the spouse of the review applicant.

    Conclusion on spouse / de facto criterion

29. As the first named visa applicant was not the spouse of the review applicant at the time of application, she does not meet cl 309.211(2).

30. The alternative requirement in cl 309.211(3) requires that at the time of application the visa applicant intends to validly marry a person who is an Australian citizen, Australian permanent resident or an eligible New Zealand citizen. The first named visa applicant was already married to the review applicant at the time of application. She thus does not meet cl 309.211(3).

31. As the first named visa applicant does not meet either cl 309.211(2) or cl 309.211(3), she does not satisfy the criterion in cl 309.211. The first named visa applicant thus does not satisfy the criteria for the grant of the visa.

32. The secondary visa applicants applied for the visa on the basis that they were members of the family unit of the first named visa applicant. As the first named visa applicant does not satisfy the time of application criterion in cl 309.211, the second, third, fourth and fifth named visa applicants do not meet the time of application criterion in cl 309.311. Therefore, the secondary visa applicants do not satisfy the criteria for the grant of the visa.

    DECISION

33. The Tribunal affirms the decision not to grant the visa applicants Partner (Provisional) (Class UF) visas.

    Mila Foster
    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).