Tran (Migration)

[2023] AATA 2980

Tran (Migration) [2023] AATA 2980 (29 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Thanh Thuy Tran

REPRESENTATIVE:  Mr Michael Cai

CASE NUMBER:  2101358

HOME AFFAIRS REFERENCE(S):          BCC2020/1175301

MEMBER:Tegen Downes

DATE:29 August 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 29 August 2023 at 11:03am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship at time of application – validly married – limited and inconsistent evidence of financial, household and social aspects of relationship – mutual commitment – applicant’s intention genuine but not sponsor’s – ongoing relationship with another woman – relationship ceased – claim of family violence requires genuine relationship first – mistreatment accepted but no finding within meaning of Act made – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cl 820.211(2)(a), 820.221(3)

CASES
Ally v MIAC [2008] FCAFC 49
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700

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 section 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 15 March 2020 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).

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2) of Schedule 2 to the Regulations. The delegate considered that the evidence and information provided was not sufficient to demonstrate that the applicant was the ‘spouse’ of the sponsor, within the meaning of s 5F of the Act.

4. The applicant appeared before the Tribunal on 27 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother. 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. The representative attended the Tribunal hearing via MS Teams. The representative was only appointed one week before the hearing. The applicant had multiple previous representatives.

6. The applicant was given the opportunity to provide further information, evidence and submissions following the hearing. This material was received and considered by the Tribunal.

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

   ISSUES AND LAW

8. This review application relates to an application for a provisional partner visa to enable the applicant to remain in Australia on a temporary basis.

9. The first issue in this review application is whether, at the time the visa application was made, the applicant was the spouse of an Australian citizen, for the purposes of cl.820.211(2)(a) of Schedule 2 to the Regulations.

10. ‘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).

11. In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship, 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 that must be answered: He v MIBP [2017] FCAFC 206.

12. In forming a view of the relationship at the time of application, the Tribunal must consider all relevant evidence, which may include evidence of events after the date of application insofar as it assists in the task of determining whether the visa applicant and the sponsor were in a partner relationship at the time of the application. Evidence of events after the visa application is relevant if it tends logically to show the existence or non-existence of facts relevant to the issue to be determined: Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139.

13. If this issue is resolved in the applicant’s favour, the next question is whether the applicant would continue to meet the requirements of cl 820.211(2) except that the relationship between the applicant and the sponsoring partner has ceased and, relevantly, the applicant has suffered family violence committed by the sponsoring partner, for the purposes of cl 820.221(3) of Schedule 2 of the Regulations.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Background

14. The applicant is a 65-year-old woman from Vietnam. At the time of application, she claimed to be in a ‘married relationship’ with her then-husband and sponsor, a now 77-year-old Australian citizen who was born in Vietnam.

15. The applicant is widowed with four adult children from her previous marriage. Some of the applicant’s family lives in Australia. The sponsor declared a previous de facto relationship, which ended in 2015 with one child of the relationship. The sponsor did not declare any family living in Australia.

16. The applicant claims to have met the sponsor in or about October 2019. The applicant was in Australia at the time visiting family. The applicant claims that the applicant and the sponsor were introduced by a mutual friend. They developed a friendship, which quickly progressed into a mutual commitment in November 2019 and their marriage in February 2020. The visa application was made one month later.

17. The applicant claims that her relationship with the sponsor ended in or about May 2021 when he evicted her from the apartment in which they lived. She claims that she suffered family violence for approximately 12 months before the relationship ended.

18. I have carefully considered the claims made by the applicant, and the oral and documentary evidence provided. The evidence is plagued with inconsistencies. There is also limited objective corroborating evidence for the applicant’s claims. Ultimately, however, I consider that the application fails on the applicant’s own evidence.

19. I accept the applicant’s evidence at face value that, from her perspective, the relationship was genuine. I also accept that she was mistreated by the sponsor during the relationship (although I make no findings as to whether the mistreatment constituted family violence within the meaning of the Act). However, the Act requires a mutual commitment to a shared life as a married couple, to the exclusion of all others. On the applicant’s evidence, I consider that the sponsor did not have the requisite subjective intention at the time of application.

20. I have considered the representative’s submissions, including that “the Sponsor’s conduct should not in and of itself be considered indicative of a non-genuine relationship. We submit that it would be unreasonable and unfair on the Applicant to consider the abuse that she had endured, comprising the Sponsor’s controlling and oppressive conduct, to be indicative of a lack of commitment for a genuine relationship”. However, having considered all of the evidence before the Tribunal, I find that the sponsor’s conduct was indicative of a lack of commitment to a genuine relationship and to a shared life with the application. While this lack of commitment may not have been evident to the applicant at the time of marriage, the evidence suggests that it had emerged before the time of application.

21. For example, the evidence submitted to the Tribunal included what were claimed to be contemporaneous diary notes written by the visa applicant. I note an entry dated

    
    

    11 March 2020, four days before the time of application, which relevantly states:

    Having been married for less than a month but I’ve already seen my life start to tumble, I really don’t know what he is thinking. He said he needed someone to stay with him, because he often gets dizzy. I came to him because I heard him say so and seen him live alone, therefore I accepted to marry him. I thought he and I were both old, and thought he was telling the truth, everyone was afraid of being lonely, being sick without anyone to care for. But as soon as we got married I didn’t expect to see him texting all women and girls... Within less than a month he has shown me his life, I don’t know if I could live the rest of my life with him but I have chosen this path, I must accept trying to fit in with him.

22. I also note the Social Work Assessment Report, which states “when they started going out and she moved in their relationship was good and then they got married and he said “OK don't do it anymore I just need a carer to look after me, I don't need anybody to be intimate or have sex with me”.

23. I acknowledge that if the sponsor entered into the relationship primarily so that the applicant could be his carer, this would not necessarily mean that the relationship was not genuine. However, the applicant’s oral and written evidence included that sponsor maintained a relationship with another woman, who he had previously invited to live with him, and that the sponsor and this woman regularly communicated by phone and frequented each other. The precise nature of this relationship is unclear. However, I consider that this matter, in conjunction with the other evidence before the Tribunal, lends itself to a finding that the sponsor’s subjective intention at time of application was not to have a mutual commitment to a shared life with the visa applicant, to the exclusion of all others.

24. I sympathise with the applicant’s claimed situation. However, the legislation requires that a spousal relationship, within the meaning of the Act, exists before a claim of family violence may be considered. On the evidence before me, and for the reasons set out in this decision, I find that the requisite relationship did not exist at time of application.

    Are the parties validly married?

25. The applicant submitted a marriage certificate issued by the Registry of Births, Deaths and Marriages in Queensland certifying that she married the sponsor on 15 February 2020 in Greenslopes.

26. Accordingly, in the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant and the sponsor were married to each other 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 married relationship met?

    Financial aspects of the relationship

27. At the time of application, the applicant claims that she and the sponsor had one joint asset, being a joint account. The existence of the joint account was confirmed by appropriate documentary evidence and as such, I accept the applicant’s claim as true and make a finding accordingly.

28. The applicant does not claim, at the time of application, to have had any joint liabilities or to owe any legal obligations to the sponsor. I make findings accordingly.

29. I find that, at the time of application, the applicant and the sponsor had not pooled their financial resources to a meaningful extent. The applicant’s evidence was to the effect that she was financially dependent on her husband and her daughter. She did not have any income and did not bring any money with her from Vietnam. According to the application, the sponsor’s main source of income was government benefits. However, the evidence before the Tribunal indicates that no government benefits were paid into the joint account.

30. I find that, at the time of application, the applicant and the sponsor did not share day-to-day household expenses in a manner consistent with a married relationship. For example, I note that in the visa application, it was claimed that “we have a joint bank account which is used by each of us for … telephone accounts”. However, the applicant gave evidence at the hearing to the effect that her daughter has always paid her telephone account, and the documentary evidence before the Tribunal does not show any direct debits for telephone accounts until March 2021.

31. I find that the financial aspects of the relationship are not indicative of a married relationship, as defined in the Act. However, I give this little weight in my overall assessment of the relationship given that the applicant and the sponsor were mature aged, the sponsor had existing assets, and the applicant had no money of her own.

    Nature of the household

32. The applicant claims, at time of application, to have lived in the sponsor’s one-bedroom apartment at a retirement village.

33. The evidence is conflicting as to when the applicant moved into the sponsor’s apartment, be it in November 2019 or after their wedding in February 2020. Initially at the hearing, the applicant’s evidence was to the effect that she moved into the apartment in November 2019 and that this was not an issue culturally because she was unmarried. However, she subsequently changed her evidence to the effect that she only moved in after the wedding.

34. The evidence submitted to the department is also conflicting. The ‘Form 80 – Personal particulars for assessment including character assessment’ completed by the applicant indicates that she moved to the sponsor’s apartment in November 2019, whereas the marriage certificate indicates that her place of residence at that time was her daughter’s house. The statements provided by the sponsor and the applicant at the time are also vague and confusing; they state in effect that they decided to live together in November 2019, but do not state whether they acted upon this decision at that time or waited until after the wedding.

35. Regardless, as the application was made after the sponsor and the applicant wed, I find that at the time of application, they lived together. I make this finding based on the applicant’s oral evidence, which in this respect I accept as true. I note that there is no compelling corroborating documentation, for example, correspondence addressed to the applicant at the address. In this regard, I note that:

    a.The bank statements are addressed to the applicant and the sponsor at the shared address. However, these started in January 2020 when the account was opened, which was before the applicant and the sponsor wed.

    b.The applicant and the sponsor submitted to the department a letter from the Village Manager stating to the effect that the sponsor had a 99-year lease and that under the lease, he was responsible to pay a monthly fee plus electricity. The letter does not refer to the applicant residing at the address, but again, I note that it is dated before the applicant and the sponsor wed.

    c.The applicant submitted a letter from the Australian Taxation Office addressed to her at the shared address dated 5 April 2021, being approximately 13 months after the time of application.

36. At the hearing, I asked the applicant words to the effect of whether any rent, fee or loans were payable in respect of the property. Her answer was ‘no’. While it is understandable that the applicant’s name was not on the lease or electricity account as the property was leased to the sponsor in 2017, I find it concerning that the applicant did not claim to have any knowledge of the household arrangements.

37. The applicant gave evidence at the hearing to the effect that she did all of the household work, other than the laundry which was done by the sponsor. I note that this is broadly consistent with the visa application form, which states “we share our household responsibilities such as cooking, cleaning and general household duties.” I find that, at the time of application, the applicant and the sponsor shared responsibility for housework.

38. Any joint responsibility for care and support of children is not applicable.

39. While I am satisfied that, at the time of application, the applicant and the sponsor lived together, I do not find that they did so in a manner consistent with a spousal relationship. The evidence is scarce, and otherwise does not indicate that the applicant and the sponsor established a joint household.

40. I also note that there is evidence before the Tribunal to the effect that, after the applicant moved in with the sponsor, they briefly shared a single bed. However, the sponsor refused to purchase, or allow the applicant’s family to purchase, a double bed, and so the applicant slept on the couch for the majority of the marriage. I note that this had already occurred within one month of the application, as the applicant’s diary notes for 25 May 2020 provides: “Like when I married him, he slept in a small bed, he said to buy a double bed for me, he also said let him buy it. It’s been 3 months now and he hasn’t bought it, it’s tight for us two to sleep on it, so I went to sleep on the sofa. He said you sleep there temporarily for now”.

41. Further, I note that, according to the Social Work Assessment Report, “when they started going out and she moved in their relationship was good and then they got married and he said “OK don't do it anymore I just need a carer to look after me, I don't need anybody to be intimate or have sex with me”.

42. Having regard to all of the evidence, I find that, at the time of application, the nature of the household was not consistent with a married relationship, as defined in the Act.

    Social aspects of the relationship

43. The visa application states that “we regularly meet family and friends for meals at one another’s homes and also dine out with family and friends for social and family functions”. However, this claim is not supported by credible evidence.

44. The evidence is conflicting as to the extent to which the applicant and the sponsor socialised with the applicant’s friends and family. The applicant submitted to the department a ‘Form 888 – Statutory declaration by a supporting witness in relation to a Partner or Prospective Marriage visa application’ from the applicant’s younger sister dated 18 December 2020, and from the applicant’s cousin, who also knew the sponsor, dated 10 December 2020.A signed written statement from the applicant’s daughter dated 4 January 2021 was also submitted. These documents are dated more than nine months after the time of application. I note that the applicant’s sister claimed in her statement that “since their marriage we meet regularly and dine at one another’s homes weekly as well as meeting together for shopping at local markets during weekends”. I note that the applicant’s cousin declared “we regularly meeting for meals (at least weekly) at one another’s or other relatives homes”.

45. At the hearing, I asked the applicant what social activities she engaged in with the sponsor. Her evidence was to the effect that they did not participate in any social activities. I put to the applicant that this was inconsistent with her visa application form. Her response was “Yes that happened a few times. A few times because one time I met with my children… [I met with] only families of my children. On Sundays or on occasions like New Years’ then he allowed them to come… We met at my daughter’s home, except on Mother’s Day then she will come and visit me…” I asked the applicant if the sponsor attended with the applicant had dinner with her family. Her response was “Yes, he did when we first got married.” I asked the applicant if she hosted her family at their apartment. Her response was “Sometimes my daughter came like on Mother’s Day because she’s busy so she didn’t have much time”. I asked the applicant what she did on the weekend with the sponsor. She said “We didn’t do anything together. Because like usual he just left me alone at home.”

1. I note that the applicant’s oral evidence is inconsistent with the documentary evidence filed with the department referred to above, as well as statutory declarations from the applicant’s friends and family filed with the Tribunal. Aside from the applicant’s brother, the declarants appear to have had limited direct involvement with the couple. Accordingly, I give their evidence less weight.

2. The applicant’s oral evidence is also inconsistent with her brother’s evidence at the hearing, which was to the effect that, after the applicant and the sponsor married, he visited them on the weekends because he wanted their relationship to be closer. He regularly visited them at their apartment while both of them were home and they had tea or coffee and spoke about their lives, or he asked them if they wanted his help with anything.

3. As to the extent to which the applicant and the sponsor socialised with the sponsor’s friends and family, the evidence is uncontentious. The applicant gave evidence to the effect that she only met one of the sponsor’s friends, who sometimes came to the house. She did not meet any of the sponsor’s other friends or family. I accept this evidence as true. While the applicant alleges that this was an element of the family violence that she endured, given that it existed since the inception of the relationship, I also consider it indicative of a lack of genuine commitment on the part of the sponsor.

4. I have considered all of the evidence before the Tribunal, including that referred to above and the photographs provided to the department. However, given the inconsistencies and the one-sided nature of the evidence (in that it did not involve friends and family of the sponsor), I find that the social aspects of the relationship, at the time of application, were not indicative of a married relationship, as defined in the Act. I find that the parties did not represent themselves to other people as being married to each other, that friends and acquaintances did not consider the relationship to be genuine, and that the applicant and the sponsor did not plan and undertake joint social activities.

   Nature of persons’ commitment to each other

5. In the application, it was claimed that “we are totally committed to one another, providing mutual care and companionship. We do not hide anything from one another and while we are no longer young we are looking forward to caring for one another as we grow older”. This claim is not consistent with the evidence before the Tribunal. While the evidence as to the applicant and the sponsor’s commitment to each other is limited, the available evidence, other than the brief statements to the department, is to the effect that the sponsor neglected the applicant.

6. I find that at the time of application, the applicant and the sponsor had been in a relationship for approximately four months and had lived together for one month. In the absence of compelling evidence, I find that they did not draw companionship and emotional support from each other and did not see the relationship as long-term. I find that, at the time of application, the nature of the applicant and the sponsor’s commitment to each other was not indicative of a married relationship, as defined in the Act.

   Conclusion

7. I have considered separately and as a whole, the evidence before me regarding each of the prescribed matters under reg 1.15A, that is, the financial, household, social and commitment aspects of the relationship. I have also considered the evidence as to the nature of the relationship as a whole.

8. However, for the reasons set out above, while I am satisfied that the applicant and the sponsor lived together, I am not satisfied that, at the time of application, the applicant and the sponsor had a mutual commitment to a shared life as a married couple to the exclusion of all others, or that the relationship was genuine and continuing for the purposes of s 5F(2)(b) and (c) of the Act.

9. Accordingly, I find that the requirements of s 5F(2) are not met and that at the time the visa application, the applicant and the sponsor were not in a married relationship as defined in the Act.

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

    DECISION

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

    Tegen Downes
    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).